NEUTRAL CITATION
C/LPA/1459/2019 ORDER DATED: 16/10/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/LETTERS PATENT APPEAL NO. 1459 of 2019
In R/SPECIAL CIVIL APPLICATION NO. 11801 of 2019
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VATSA SHAH THRU. FATHER BHAVESH AJITKUMAR SHAH
Versus
STATE OF GUJARAT
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Appearance:
RAHUL SHARMA(8276) for the Appellant(s) No. 1
MR. KRUTIK PARIKH, AGP, ADVANCE COPY SERVED TO GOVERNMENT
PLEADER/PP for the Respondent(s) No. 1
MR. KM ANTANI(6547) for the Respondent(s) No. 2
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CORAM:HONOURABLE THE CHIEF JUSTICE MRS. JUSTICE
SUNITA AGARWAL
and
HONOURABLE MR. JUSTICE ANIRUDDHA P. MAYEE
Date : 16/10/2023
ORAL ORDER
(PER : HONOURABLE THE CHIEF JUSTICE MRS. JUSTICE SUNITA AGARWAL)
1. The present Appeal is directed against the judgment and order dated 17.07.2019 passed by the learned Single Judge in rejecting the prayer made by the appellant - petitioner to permit her to take admission in MBBS Course against the government seat and restrain the respondent committee from treating the candidature of the petitioner at par with NRI (Non-Resident Indian) in the matter of Page 1 of 10 Downloaded on : Fri Oct 20 20:35:02 IST 2023 NEUTRAL CITATION C/LPA/1459/2019 ORDER DATED: 16/10/2023 undefined admission, in the MBBS Course. The dispute pertains to the academic session 2019-20. The order impugned records that the petitioner's candidature was considered at par with NRI and her name was included in the merit list of NRI students.
2. By reading and re-reading of the Rules 3 and 4 of the Gujarat Professional Medical Educational Courses (Regulation of Admission and Fixation of Fees) Rules, 2017 (hereinafter referred to as 'the Rules, 2017 for short) framed under the Gujarat Professional Medical Educational Colleges or Institutions (Regulation of Admission and Fixation of Fees) Act 2007 (in short as 'the Act, 2007'), it is submitted by the learned counsel for the appellant that NRI candidates are entitled for admission against a government seat and hence, the petitioner being entitled to all the benefits admissible to NRI in view of the Notification dated 11.04.2005, can claim the same rights as are admissible to NRI under Rule 4 to seek admission against the government seat. It is then argued that the Rule 4 does not distinguish between the government seat or management quota, insofar as, the NRI Page 2 of 10 Downloaded on : Fri Oct 20 20:35:02 IST 2023 NEUTRAL CITATION C/LPA/1459/2019 ORDER DATED: 16/10/2023 undefined or Overseas Citizen of India. It is submitted that under Section 7B of the Citizenship Act, 1955, having recognition of an Overseas Citizen of India, the petitioner possess card which confers right upon her as per Section 7B of the Citizenship Act, 1955. The Notification dated 11.04.2005 appended at page '48' of the paper-book has been placed before us to assert that being an Overseas Citizen of India, the petitioner is entitled for parity with Non-Resident Indians in respect of facilities available to them in economic, financial, educational fields.
3. Taking note of the above submission made by the learned counsel for the petitioner, we may look into the provisions contained in Rule 3 and Rule 4 of Rules, 2017 extracted by the learned Single Judge in order impugned. A careful reading of both the above noted Rules in juxtaposition indicates that for seeking admission against a government seat, a candidate has to fulfill the following eligibility criteria : -
"4. Eligibility for Admission -
A candidate who desires admission shall -Page 3 of 10 Downloaded on : Fri Oct 20 20:35:02 IST 2023
NEUTRAL CITATION C/LPA/1459/2019 ORDER DATED: 16/10/2023 undefined (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 be treated as cancelled without any notice.
Provided further that candidates seeking admission on Non-Resident Indian seat shall be Non-Resident 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."
4. The first and foremost requirement of Rule 4 of Rules, 2017 is that the candidate desirous of taking admission in MBBS Course, shall be a Citizen of India. The second proviso to Sub-Rule (1) of Rule 4, however, provides that the candidate seeking admission on Non-Resident Indian seat, shall be a Non-Resident Indian or children or wards of a Non-Resident Indian. A bare reading of the second proviso to Sub-Rule (1) of Rule 4 indicates that an exception has been carved out to candidates seeking admission on NRI Page 4 of 10 Downloaded on : Fri Oct 20 20:35:02 IST 2023 NEUTRAL CITATION C/LPA/1459/2019 ORDER DATED: 16/10/2023 undefined seats (Non-Resident Indian Seat) that means a candidate seeking admission on NRI seat is not required to fulfill the condition of being a Citizen of India as provided in Sub-Rule (1) of Rule 4 of the Rules, 2017. The interpretation given to the second proviso to Rule 4(1) of the Rules, 2017 by the learned Counsel for the appellant to assert that even an NRI is entitled for admission against a government seat and there is no requirement of the student being a Citizen of India for seeking admission against a government seat, is a result of misreading of the said provision.
5. Coming to Sub-Rule (3), which provides for admission to the first year of the MBBS Course, in relation to available seats for admission, we may note that government seats and management seats are prescribed in separate clauses 'A' and 'B' of Sub-Rule (1) of Rule 3. The description of management seats in Clause B(i) is necessary to be taken note of. A reading of the said provision indicates that 15% of the Non-Resident seats (NRI seats) of the professional medical courses are included in the management seat quota. Page 5 of 10 Downloaded on : Fri Oct 20 20:35:02 IST 2023
NEUTRAL CITATION C/LPA/1459/2019 ORDER DATED: 16/10/2023 undefined Clause B of Sub-Rule (1) of Rule 3 reads as under : -
"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."
6. Insofar as Non-Resident Indian seats are concerned, the availability of the said seats for admission has been described in Clause 'C' in the following manner : -
"C. Non-Resident 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. Provided that if a Non-Resident 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 Non-Resident Indian Seats by the Admission Committee, such Non- Resident 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 Page 6 of 10 Downloaded on : Fri Oct 20 20:35:02 IST 2023 NEUTRAL CITATION C/LPA/1459/2019 ORDER DATED: 16/10/2023 undefined shall be considered for computation of the total available seats."
7. Clause 'A' providing for Government seats reads as under : -
"A. Government Seats. -
(i) All the sanctioned seats of the Professional Medical Courses in the 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-in-aid 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."
8. From a careful reading of the Clauses 'A', 'B' and 'C' of the Sub-Rule (1) of Rule 3 indicate that three categories of seats available for admission in MBBS Course are defined in separate clauses. For a Non-Resident Indian seat, which is 15 per cent seat of the total sanctioned seats of Professional Medical Course in unaided Colleges, Institutions or a University, the same is to be included in the management quota and in case, the said seat remains vacant, it shall be Page 7 of 10 Downloaded on : Fri Oct 20 20:35:02 IST 2023 NEUTRAL CITATION C/LPA/1459/2019 ORDER DATED: 16/10/2023 undefined filled as management quota, whereas the management seats as provided in Clause 'B(i)', if remains vacant, it shall be filled as available government seat, whereas, there is no such provision, insofar as the government seat is concerned, in Clause 'A' Sub-Rule (1) of the Rule 3 of Rules, 2017.
9. Having carefully gone through the Rules '3' and '4' relied by the learned counsel for the appellant, we are of the considered opinion that an Overseas Citizen of India, who is entitled for the benefits as available to a Non-Resident Indian in view of the Notification issued under Section 7B of the Citizenship Act, cannot be claim parity with those of the Indian Nationals, a citizen of India, as per Sub-Rule (1) of Rule 4 of the Rules, 2017.
10. The Rule which has been extracted in the order passed by the learned Single Judge in paragraph 9, and has been read and interpreted by us in the same manner, admittedly, was prevailing on the date of inclusion of the petitioner - appellant herein, in the merit list of NRI quota. Page 8 of 10 Downloaded on : Fri Oct 20 20:35:02 IST 2023
NEUTRAL CITATION C/LPA/1459/2019 ORDER DATED: 16/10/2023 undefined
11. In view of the above discussion, we do not find any error in the order passed by the learned Single Judge in interpreting of Sub-Rule (1) of Rule 4. The findings returned by the learned Single Judge that the Second proviso to Sub- Rule (1) of Rule 4 only carves out an exception to the effect that the candidate seeking admission on Non-Resident Indian Seat, shall be Non-Resident Indian or children or wards of a Non-Resident Indian, and that if the candidate is seeking admission on the seat other than NRI Seat, he/shall has to be a citizen of India and fulfill other conditions mentioned in the said Rule 4, cannot be said to suffer from any error of law. The interim order dated 10.08.2018 passed in Special Civil Application No. 11519 of 2018 in the case of Arushi Hitesh Sevak versus State of Gujarat of the decision of Coordinate Bench of this Court is of no benefit to the appellant - petitioner.
12. In view of the above discussion, we do not find any merit in the challenge. The Appeal is DISMISSED, Page 9 of 10 Downloaded on : Fri Oct 20 20:35:02 IST 2023 NEUTRAL CITATION C/LPA/1459/2019 ORDER DATED: 16/10/2023 undefined accordingly. Notice is discharged. Pending Civil Application(s), if any, shall also stand disposed of, accordingly.
(SUNITA AGARWAL, CJ ) (ANIRUDDHA P. MAYEE, J.) AMAR SINGH Page 10 of 10 Downloaded on : Fri Oct 20 20:35:02 IST 2023