Not mandatory for OCI cardholder to possess an Indian passport: Bombay HC upholds MBBS admission granted to student
Mumbai: Upholding the state government's decision of granting admission to an overseas citizen of India in the MBBS course at Goa Medical College under the NRI quota, the Bombay High Court has recently dismissed a plea opposing the admission.
Considering that the main issue of contention was the medical student's not holding an Indian passport, the court stated that it is not mandatory for an OCI cardholder to possess an Indian passport.
This came after the petitioner challenged the admission of one of the medical aspirants to the First MBBS course at Goa Medical College against category 11 – NRI described in Clause 6.11 of the Prospectus and seeks admission in her place. The counsel for the petitioner submitted that any applicant who seeks admission to the NRI quota must possess an Indian passport and must have passed the qualifying examination from schools to colleges located outside India in a country of his/her residence.
It was pointed out that the admitted medical student neither holds an Indian passport nor has she passed the qualifying examination from schools/colleges located outside India. He, therefore, submitted that the student was not entitled to be admitted against the NRI quota for the first MBBS course. He submitted that even the Government is required to amend the prospectus at least six months before the commencement of the academic year.
Mr. Sardessai, counsel for the petitioner, submitted that at the highest the condition about holding of Indian passport could have been waived because the respondent was an Overseas Citizen of India (OCI) and therefore a foreign national. He, however, submitted that, neither the Admission Committee nor the government had the power to relax the condition of an applicant passing the qualifying examination from a school or college outside India.
He added that such relaxation is without jurisdiction, arbitrary and unconstitutional. He submitted that such departure will deprive other similar placed applicants who might be more meritorious than respondent no.4, but, who might have not applied because of the clear condition in the prospectus.
In reply, advocate general of the state Devidas Pangam and respondent's lawyer defended the admission of the medico by submitting that Clause 6.11 of the Prospectus nowhere requires an OCI cardholder to either hold an Indian passport, which is an impossibility or to pass the qualifying examination outside India. They pointed out that Clause 6.11 of the Prospectus merely provides that OCI/PIO cardholders are considered eligible for admission to seats of the NRI category.
They submitted that this means that as long as an applicant is OCI/PIO cardholder, he/she is eligible for admission to this reserved quota based on the merit determined by NEET. Mr. Kakodkar pleaded equities by pointing out that OCI student is more meritorious than the petitioner and further based upon her present admission, has forgone her admission to the Ayurvedic Medical Course. He submited that the merit ought not to be sacrificed at the altar of hypertechnical pleas which in any case, lack legal foundation.
Dr. Vivek Kamat, the Director of the Technical, filed a detailed affidavit in which, he explained the difference between NRI applicant and OCI/PIO cardholder applicants. He pointed out that initially the benefit of the reservation was extended only to NRIs – per see. However, from 2011, the benefit of reservation was extended to OCI/PIO cardholders in terms of the policy decision of the State Government
After considering the submission of both the parties, the court noted that the aforesaid eligibility criteria was introduced in Clause 6.11 of the Prospectus only to obtain sufficient proof that the applicant was truly an NRI and therefore, entitled to the benefit of reservation in terms of the policy decision of the State Government.
Commenting on the eligibility criteria for NRI, the bench comprising Justices MS Sonak and MS Jawalkar observed
There was no reason to introduce such eligibility criteria to OCI cardholders because in their case the competent authority has already examined the eligibility criteria prescribed under Section 7A of the Citizenship Act, 1955 and only thereafter issued to them a card thereby conferring upon them the status of OCI cardholders. This is quite clear, from the circumstance that an OCI cardholder, is not a citizen of India, and therefore, it would be futile to insist that even the OCI cardholder must hold an Indian passport
The court further added, " we find no infirmity in the Admission Committee or the State Government reading and construing Clause 6.11 of the Prospectus, in the manner in which they have. The circumstance, that this is how Clause 6.11 of the Prospectus has been read, understood, and construed right from the inclusion of OCI/PIO cardholder to the benefits of reservation i.e. from 2011 is only an additional, though not a conclusive circumstance, in favour of the respondents."
Observing that this is not some case of a waiver, relaxation, or departure from the conditions set out in Clause 6.11 of the Prospectus, the court stated,
Consequently, the rulings relied upon by Mr. Sardessai really do not apply to the fact situation of the present matter. In the absence of any relaxation, waiver, or departure, the contention-based upon arbitrariness or unfairness also fails and the rulings relied upon by Mr. Sardessai, on this aspect, are also quite inapplicable. Since, we find no infirmity in the admission granted to respondent no.4, there is no need, to go into the issues of equity or sympathy raised by Mr. Kakodkar, learned Counsel in this matter.
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