SC grants Relief to PG Medical Candidate Denied OCI Benefit Based on 2021 MEA Notification
New Delhi: In a major relief to a candidate seeking Postgraduate medical admission, who was denied the benefits of an OCI card holder based on an MEA notification issued in 2021, the Supreme Court has directed her candidature to be considered in other rounds of counselling for the All India Institute of Medical Sciences (AIIMS), and NEET-PG medical seats.
While the candidature of the petitioner student holding an Overseas Citizen of India (OCI) card was rejected by AIIMS, the Supreme Court found the rejection of her application as an OCI candidate illegal.
"In the present case, although the OCI Card relied upon by the petitioner on 04.08.2022, the fact that she was in fact issued the OCI registration card first, on 02.11.2015. In such circumstances, the petitioner’s eligibility to claim the benefit of OCI card holder in terms of the ruling in Anushka (supra) is undeniable. The rejection of her candidature at this stage, i.e. on 19.06.2023 is not supportable in law," observed the Apex Court bench comprising Justice S Ravindra Bhat.
"She is consequently directed to be considered in remaining counselling rounds by the AIIMS and all participating institutions for PG Medical seats. It is clarified that the consideration would be regarding seats that are unfilled on the date of this judgment whether reserved for SC/ST/OBC or other categories and such as specially earmarked for Bhutanese candidates etc. if they can be filled by other candidates, like her. Furthermore, this facility should be open to the petitioner as well as other candidates based upon the available records of those issued OCI cards prior to 04.03.2021 and who can participate in such counseling having regard to their performance in the NEET test, and their ranking," the bench further observed.
The petitioner, who holds an OCU card and is a U.S. national, approached the Apex Court bench seeking relief under Article 32 of the Constitution after her candidature to a PG medical seat was rejected by AIIMS. Her application was rejected after she was allowed to appear in the written examination and the results for NEET PG and INICET 2023 were declared.
It was submitted that AIIMS Prospectus mentioned the eligibility conditions indicating that the candidate should possess a Medical or Dental Degree and must have completed the required period of 12 months training and should possess a certificate of grading system from the concerned universities/institutions to determine the value of grading in percentage and the minimum marks in aggregate in MBBS/BDS professional examinations was to be 55% aggregate or equivalent.
Additionally, for Foreign Nationals, a No Objection Certificate was also deemed essential. This needed to be issued by the Ministry of External Affairs, Government of India.
The application of the petitioner listed her as the OCI candidate and consequently, she appeared in the examination as well. Following this, the results were declared and the results published showed that she had secured 96.73 percentile and her overall rank was 1902.
Although initially, the petitioner was informed that she would be treated as a Foreign National as she disclosed her status to be OCI, later on 19.06.2023 she was informed that she would no longer be treated as OCI candidate and would be considered in the category of "Indian National".
As the first-round of counselling was about to commence on 23.06.2023, the petitioner was informed and alleges that she had no choice but to opt for status of an Indian National which she did, under protest and participated in the first counselling round. Thereafter, she approached the Court immediately on June 21 and contended that despite completing the entire process without any error or mistake, the change of her status had reduced the chances of her securing admission in the PG Medical Course considerably.
It was further contended by her that the change of status presumably on the basis of a Central Government notification dated 04.03.2021 was unfair given that she had in all senses of the term burnt or foreclosed her options. She further argued that for all practical purposes, from the year 2005 and especially her higher education trajectory made her eligible for admission as a foreign national having an OCI card.
Therefore, she argued that the decision of AIIMS to treat her as Indian National was unfair and arbitrary. It was also contended by the petitioner's counsel that the basis for this change of stand appears to be the Ministry of Home Affairs Notification dated 04.03.20213, under the head (Parity with NonResident Indians in the matter of admission to NEET) indicated an exception that OCI card holder is ineligible for admissions to seats exclusively reserved for Indian citizens.
He further argued that the MEA notification was considered by the Apex Court in the case of Anushka Rengunthwar & Ors. V. Union of India & Ors and submitted that the top court recognized that the Central government could issue the notification of the kind which it did on 04.03.2021 in regard to the matters, enumerated or provided for. Yet at the same time, the Court categorically ruled that retrospective effect could not be given to that notification and that despite it seemingly on its application it did have an element of retroactive application. The court ruled that the OCI card holder status meant that persons like petitioner are treated as overseas citizens of India and Sections 7A to 7D of the Citizenship Act, 1955, enacted the procedure for their registration and cancellation, keeping in mind that the earlier notification dated 11.04.2005, 05.01.2007 and 05.01.2009 had enabled such OCI cardholders to apply for educational institutions in India and the state could not deny them such benefits abruptly.
It was further emphasized by the petitioner's counsel that the Apex Court had previously declared that the operation of the 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.
While considering the matter, the top court bench took note of the Supreme Court order in the case of Anushka (Supra) and also perused the MEA notification dated 04.03.2021.
"A plain reading of the notification undoubtedly leads one to conclude that it withdraws the eligibility or privileges which had been hitherto conferred upon OCI Card holders regarding their parity with Indian nationals for appearing in All India examinations such as NEET. This meant that after the date of issuance of that notification, i.e. 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 of the 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)," observed the bench.
The bench also cited the previous SC order in the case of Anushka (Supra). Medical Dialogues had earlier reported that the top court bench had earlier ruled in this case that the Central Government rule of barring the Overseas Citizens of India (OCI) cardholders to apply for general category medical seats will be applied prospectively from the date on which the rule was implemented.
It was observed by the top court bench of Justices A.S Bopanna and C.T Ravikumar that the rule "shall apply prospectively only to persons who are born in a foreign country subsequent to 04.03.2021 i.e. the date of the notification and who seek for a registration as OCI cardholder from that date since at that juncture the parents would have a choice to either seek for citizenship by descent or to continue as a foreigner in the background of the subsisting policy of the Sovereign State."
"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 participation of the petitioners and similarly placed OCI cardholders in the selection process and the subsequent action based on the interim orders passed herein or elsewhere shall stand regularised," the bench had further observed in the case of Anushka.
Citing this judgment, in the present case, the top Court bench comprising Justices S. Ravindra Bhat and Aravind Kumar noted,
"In the present case, although the OCI Card relied upon by the petitioner on 04.08.2022, the fact that she was in fact issued the OCI registration card first, on 02.11.2015. In such circumstances, the petitioner’s eligibility to claim the benefit of OCI card holder in terms of the ruling in Anushka (supra) is undeniable. The rejection of her candidature at this stage, i.e. on 19.06.2023 is not supportable in law."
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