The All India Institute of Medical Sciences (AIIMS), the Nodal Agency for the NEET test/examination, called for applications from eligible candidates by publishing a prospectus for NEET process on 07.03.2023. Seats available for all Indian Nationals (excluding sponsored & Foreign National seats)
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A consolidated list of seats available for admission into postgraduate courses in participating INIs for July 2023 session of various INIs will be prepared and published by Examination section, AIIMS, New Delhi on the basis of official information received from respective INIs.
Seats available for Sponsored & Foreign National The list of INI-wise and Specialty-wise available seats for Sponsored & Foreign Nationals will be accessible through Seats Available Tab on or before starting of “completion of application” as per mentioned in the “Important dates Tab ”.
In light of these developments, suddenly on 19.06.2023, she was informed that, she would no longer be treated as OCI candidate, but would be considered in the category of “Indian National”. Therefore, she approached this Court immediately thereafter, on 21.06.2023, contending that despite completion of entire process and there 4 being no error or mistake on her part, the change of her status had reduced the chances of her securing admission in the PG Medical Course considerably. Senior Counsel, on behalf of the petitioner that the basis for this change of stand appears to be the Ministry of Home Affairs Notification dated 04.03.2021, under the head (Parity with Non- Resident Indians in the matter of admission to NEET) indicated an exception that OCI card holder are ineligible for admissions to seats exclusively reserved for Indian citizens. It was emphasized that the Court, therefore, declared that the operation of notification which provided for supersession of earlier notifications and clause 4 (ii) and its proviso and explanation could operate only prospectively in respect of OCI Card holder who have secured admission consequently on 04.03.2021.It was submitted that in the present case the OCI card was issued to the petitioner prior to that date, i.e., on 02.11.2015.
It was contended that in any event since the petitioner was born much prior to 04.03.2021, the application of the notification (04.03.2021) operated with effect from the date of the judgment i.e., 03.02.2023. 1050(E) –
In exercise of the powers conferred by sub-section (1) of section 7B of the Citizenship Act, 1955 (57 of 1955) and in supersession of the notification of the Government of India in the Ministry of Home Affairs published in the Official Gazette vide number S.O.
The facts in this case are not disputed; undoubtedly the petitioner was treated as a foreign national and allowed to appear in the NEET mains- as OCI cardholder; she even secured a fairly high rank. 04.03.2021, such OCI card holders could not claim the privilege of eligibility for admission in any competitive entrance examination “ any seat reserved exclusively for Indian citizens ” was an abrupt notifications all these notifications were somewhat softened by retroactive application facially was that all OCI Card holders who had planned their academic careers based upon pre-existing notifications dated 11.04.2005, 05.01.2007 and 05.01.2009 were held to be eligible to continue with that privilege in terms of the judgment in Anushka (supra).
Though the notification ex facie may not specify retrospective application, the effect of superseding the earlier notifications and the proviso introduced to clause 4(ii) would make the impugned notification dated 04.03.2021 ‘retroactive’ insofar as taking away the assured right based on which the petitioners and similarly placed persons have altered their position and have adjusted the life’s trajectory with the hope of furthering their career in professional education. Article 14 of the Constitution can be invoked and contend only when persons similarly placed are treated differently and in that view the OCI Cardholders being a class by themselves cannot claim parity with the Indian citizens, except for making an attempt to save the limited statutory right bestowed. The further contention insofar as equating the OCI Cardholders to compete only for the seats which are reserved for NRIs and to exclude the OCI Cardholders for admission against any seat reserved exclusively for the Indian citizens, across the board, even to the persons who were bestowed the right earlier, it is stated that the rationale is to protect the rights of the Indian citizens in such matters where State may give preference to its citizens vis–vis foreigners holding OCI Cards. There are no details made available about the consideration made as to, over the years how many OCI cardholders have succeeded in getting a seat after competing in the selection process by which there was denial of seats to Indian Citizens though they were similar merit-wise. If in that light, the details of the first petitioner taken note hereinabove is analysed in that context, though the option of getting the petitioner No 1 registered as a citizen under Section 4 of Act, 1955 by seeking citizenship by descent soon after her birth or even by registration of the citizenship as provided under Section 5 of Act, 1955, was available in the instant facts to her parents, when immediately after the birth of petitioner No 1 the provision for issue of OCI cards was statutorily recognised and under the notification the right to education was also provided, the need for parents of petitioner No 1 to make a choice to acquire the citizenship by descent or to renounce the citizenship of the foreign country and seek registration of the Citizenship of India did not arise to be made, since as 9 an alternative to dual citizenship the benefit had been granted and was available to petitioner No 1 and the entire future was planned on that basis and that situation continued till the year 2021. Therefore in that circumstance when there was an assurance from a sovereign State to persons like that of the petitioner No 1 in view of the right provided through the notification issued under Section 7B(1) of Act, 1955 and all ‘things were done’ by such Overseas Citizens of India to take benefit of it and when it was the stage of maturing into the benefit of competing for the seat, all ‘such things done’ should not have been undone and nullified with the issue of the impugned notification by superseding the earlier notifications so as to take away even the benefit that was held out to them.
Further in such circumstance when the stated object was to make available more seats for the Indian Citizens and it is demonstrated that seats have remained vacant, the object for which such notification was issued even without saving the rights and excluding the petitioners and similarly placed OCI Cardholders with the other students is to be classified as one without nexus to the object.
In the above circumstance, keeping in view, the object with which the Act, 1955 was amended so as to provide the benefit to Overseas Citizen of India and in that context when rights were given to the OCI 10 cardholders through the notifications issued from time to time, based on which the OCI cardholders had adopted to the same and had done things so as to position themselves for the future, the right which had accrued in such process could not have been taken away in the present manner, which would act as a ‘retroactive’ notification. However, it will act as retroactive action to deny the right to persons who had such right which is not sustainable to that extent.
Hence we are of the view that the retroactive operation resulting in retrospective consequences should be set aside and such adverse consequences is to be avoided.
Therefore in the factual background of the issue involved, to sum up, it will have to be held that though the impugned notification dated 04.03.2021 is based on a policy and in the exercise of the statutory power of a Sovereign State, the provisions as contained therein shall apply prospectively only to persons who are born in a foreign country subsequent to 04.03.2021 i.e. We further hold that the petitioners in all these cases and all other similarly placed OCI cardholders will be entitled to the rights and privileges which had been conferred on them earlier to the notification dated 04.03.2021 and could be availed by them notwithstanding the exclusion carved out in the notification dated 04.03.2021. The application of proviso to Clause 4 (ii) of the notification of 04.03.2021 was held to have no nexus with the objects sought to be achieved.
Case Title: PALLAVI Vs. UNION OF INDIA
Case Number: W.P.(C) No.-000642 / 2023
