Vatsa Shah Thru. Father Bhavesh ... vs State Of Gujarat
2023 Latest Caselaw 7636 Guj

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      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

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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

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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 -

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(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

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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.

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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

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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

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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.

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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,

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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