Khalid Ahmed Ghilan Amran, S/O ... vs The State Of Rajasthan
2022 Latest Caselaw 6747 Raj/2

          HIGH COURT OF JUDICATURE FOR RAJASTHAN
                      BENCH AT JAIPUR

                 S.B. Civil Writ Petition No. 17905/2019

Khalid Ahmed Ghilan Amran, S/o Shri Ahmed Ghilan Amran,
Aged About 45 Years, R/o At Present 3/5, Nagar Nigam Colony,
Amer Road, Jaipur.
                                                                                 ----Petitioner
                                              Versus
1.         The      State       Of       Rajasthan,         Through          Its    Addl.       Chief
           Secretary,           Department             Of       Higher         And        Technical
           Education, State Government Of Rajasthan, Secretariat,
           Jaipur.
2.         The Union Of India, Through Its Foreigner Regional
           Registration           Officer,       East       Block-B,         Level-Ii,        Sec.1,
           R.k.puram, New Delhi 110066.
3.         The Foreigners Registration Office, Jaipur City Through Its
           Zone Officer, Jalebi Chowek, Jda Market, Near City Palace,
           Jaipur-302002.
                                                                           ----Respondents

For Petitioner(s) : Mr.S.P.Mathur, Advocate. For Respondent(s) : Mr.R.D.Rastogi, ASG assisted by Mr.Devesh Yadav, Advocate.

HON'BLE MR. JUSTICE ASHOK KUMAR GAUR

Order

18/10/2022

The instant writ petition has been filed by the petitioner

challenging the orders dated 03.09.2019 & 04.09.2019 passed by

the respondents whereby they cancelled Research/Stay VISA of

the petitioner prematurely and further asked the petitioner to

apply Exit Permit for leaving the country. The petitioner

additionally seeks a direction to consider his case for issuance of

Student Research VISA (Ph.D.) to pursue the said course in

(D.B. SAW/1582/2019 and 2 more have been filed in this matter. Please refer the same for further orders)

(2 of 14) [CW-17905/2019]

Vivekananda Global University, Jaipur and further not to deport

the petitioner to his home country i.e. Yemen.

2. The brief facts, as pleaded in the writ petition, are that the

petitioner being a national of Yemen country initially got admission

in M.Tech. (Upstream) Course in Petroleum Engineering in the

National Institute of Medical Sciences University, Jaipur (in short

"NIMS University") in the year 2013 and he passed the said course

in the year 2016. The petitioner got himself registered in NIMS

University as research student to accomplish Ph.D. in Chemical

Engineering in the year 2016.

3. The petitioner has pleaded that he came to know in the year

2019 vide letter issued by the State of Rajasthan dated

27.02.2019 that M.Tech. (Upstream) Course in Petroleum

Engineering and Ph.D. in the subject of Chemical Engineering were

not approved as per Schedule-II of the NIMS University Act.

4. The petitioner has pleaded that he was having a valid

Student VISA to study in the NIMS University upto 11.04.2019

and due to non-issuance of bonafide certificate by the NIMS

University, the petitioner filed S.B.Civil Writ Petition No.6128/2019

before this Court for issuance of NOC from NIMS University to

change his institution.

5. The petitioner has pleaded that since his VISA was expiring

on 11.04.2019 and no interim protection was given to him, he

approached Division Bench of this Court by filing D.B.Civil Special

Appeal (Writ) No.630/2019 and the Division Bench vide order

dated 12.04.2019, disposed of the appeal by giving direction to

the NIMS University to issue bonafide certificate to the petitioner

(D.B. SAW/1582/2019 and 2 more have been filed in this matter. Please refer the same for further orders)

(3 of 14) [CW-17905/2019]

and the Foreigners Regional Registration Officer (FRRO) was

directed to extend the stay of the petitioner for at least ten days

and the Union of India was directed to take decision with regard to

issuance of VISA to the petitioner after considering the bonafide

certificate, as per the law.

6. The petitioner has pleaded that after the order was passed

by the Division Bench of this Court, the Foreigners Regional

Registration Office, extended the VISA of the petitioner from

12.04.2019 to 11.04.2020.

7. The petitioner has pleaded that the NIMS University

cancelled admission (registration) of the petitioner from Ph.D.

Course and issued NOC to him to pursue Ph.D. from any other

University/Institution. The petitioner, meanwhile, had applied for

his registration of Ph.D. in Mechanical Engineering in three year

program in Vivekananda Global University, Jaipur and admission

letter was also issued to him on 07.10.2019, asking the petitioner

to join on 25.10.2019.

8. The petitioner has pleaded that since he was issued a degree

of M.Tech. as well as the NOC, as such, he withdrew his writ

petition (S.B.Civil Writ Petition No.6128/2019).

9. The petitioner has pleaded that since he had filed writ

petition against NIMS University and as such, the University

authorities started writing letter to Foreigners Regional

Registration Officer with ill motive as they wanted to see

cancellation of VISA of the petitioner so that the petitioner could

be sent back to his own country.

(D.B. SAW/1582/2019 and 2 more have been filed in this matter. Please refer the same for further orders)

(4 of 14) [CW-17905/2019]

10. The petitioner has pleaded that the respondents in an

arbitrary manner issued impugned orders curtailing the term of his

Stay VISA which was already granted till 11.04.2020 and

accordingly, the impugned orders dated 03.09.2019 & 04.09.2019

need to be quashed and set aside.

11. The petitioner has pleaded that after issuance of the

impugned orders dated 03.09.2019 & 04.09.2019, the NIMS

University on 17.10.2019 called the police in the campus itself and

the petitioner was taken away by them. The petitioner submitted a

written representation on the same day i.e. 17.10.2019 and

requested the police authorities that he was not able to fly back to

his country-Yemen on the same day as he was not having flight

fare for the same and as such, the petitioner was informed on the

next date i.e. 18.10.2019 that he was to leave the country after

arranging money for his flight to the country.

12. The petitioner has pleaded that request was made by him by

submitting a representation to issue a Student Research VISA, as

per the guidelines of the Government of India as the petitioner got

admission in new University and further the petitioner got a legal

notice served on the respondents for issuance of Student Research

VISA by speed post.

13. The petitioner feeling aggrieved by the ex-parte cancellation

of Student Research VISA and non-issuance of Student Research

VISA, has filed the present writ petition.

14. Counsel for the petitioner Mr.S.P.Mathur has made following

submission while assailing the orders dated 03.09.2019 &

04.09.2019, passed by the respondents:-

(D.B. SAW/1582/2019 and 2 more have been filed in this matter. Please refer the same for further orders)

(5 of 14) [CW-17905/2019]

14A. The impugned orders are arbitrary orders which have

been issued without affording any opportunity of hearing to

the petitioner.

14B. Once the order was passed by the Division Bench of

this Court dated 12.04.2019 of extending stay of the

petitioner for at least ten days and within this time, the

Union of India was directed to take a decision with regard to

issuance of VISA to the petitioner and accordingly, the VISA

of the petitioner was extended upto 11.04.2020, the

respondent-authorities had no jurisdiction to cancel the

VISA, issued to the petitioner, in midway and the same also

amounts to violation of directions given by this Court.

14C. The petitioner is a student of Ph.D. Course and after

change of his University i.e. from NIMS University to

Vivekananda Global University, the respondents as per the

policy of grant of Student VISA, should have permitted the

petitioner to complete his Ph.D. Course.

14D. The stay of petitioner on Indian Soil has never been

found to be affecting any person and since his conduct and

behaviour being good, he should be continued as a student

and the cultural relations between Yemen and India, have

always been cordial.

14E. In absence of any adverse report about conduct of the

petitioner, the decision of the respondent-authorities to

cancel the VISA of the petitioner, is an arbitrary exercise of

power.

(D.B. SAW/1582/2019 and 2 more have been filed in this matter. Please refer the same for further orders)

(6 of 14) [CW-17905/2019]

14F. Once the Central Office i.e. Foreigners Regional

Registration Office, Delhi had issued the extended VISA upto

11.04.2020, only on the basis of objection raised by the local

office at Jaipur including clarification sought from counsel for

the respondent not to extent VISA beyond period of ten

days, cannot be a valid basis to cancel the VISA of the

petitioner.

14G. In today's world where students of different countries

are going to other countries for pursuing their studies and

imparting of education to the foreign students is a part of

education system of every country and as such, the

petitioner being a citizen of Yemen country if has come to

the country like India and policy of the Government of India

provides for grant of Student VISA for a specific period, the

same should not be curtailed without any basis and

justification.

14H. Though power lies with every country to frame its own

policy to permit the foreign students in their country,

however, in this period of globalization and inter-dependence

of different countries, treatment given to the petitioner in

such a manner would bring disgrace to this country itself as

the foreign national has been treated in a discriminatory

manner.

15. Mr.S.P.Mathur, counsel appearing for the petitioner, in

support of his submissions, has placed reliance on the following

judgments:-

(D.B. SAW/1582/2019 and 2 more have been filed in this matter. Please refer the same for further orders)

(7 of 14) [CW-17905/2019]

A. Louis De Raedt Vs. UOI & Ors. reported in -(1991) 3 SCC

554.

B. Kamil Siedczynski Vs. UOI & Ors. reported in (2020) 3 CALLT

235 (HC).

16. The respondents have filed affidavit in response to the writ

petition wherein they have pleaded that FIR No.502/2019 was

registered by CID Special Branch, Jaipur before Police Station

Manak Chowk, Jaipur on 11.11.2019 against the petitioner

alleging he was residing illegally in India after cancellation of VISA

on 03.09.2019.

17. The respondents have pleaded that initially the petitioner

was granted Student VISA on 15.07.2013 which was converted

into Research VISA on 16.06.2016 and as per clause 61(VII) of

the VISA Rules, change of subject or Institutions of affirmation of

Research VISA, is not be normally allowed.

18. The respondents have averred that the petitioner has misled

the Vivekananda Global University, Jaipur while they have

informed the Police authorities that the petitioner was

provisionally admitted in the Ph.D. program on the basis of Stay

VISA having validity till 11.04.2020 and his student ID was not

generated by the Bureau of Immigration.

19. The respondents have further pleaded that the petitioner got

his admission letter dated 07.10.2019 from Vivekananda Global

University by misrepresentation that his VISA was valid till

11.04.2020. However, VISA of the petitioner was already cancelled

on 03.09.2019 and thereafter, the petitioner was given Exit Permit

on 04.09.2019.

(D.B. SAW/1582/2019 and 2 more have been filed in this matter. Please refer the same for further orders)

(8 of 14) [CW-17905/2019]

20. The respondents have pleaded that they issued Exit Permit to

the petitioner on 17.10.2019 as this Court on 15.10.2019 had

directed to take action in accordance with the law and the

petitioner has concealed the said fact in the writ petition and the

Exit Permit has also not been put to challenge by him.

21. The respondents have further placed on record a letter dated

25.11.2019 issued by the Vivekananda Global University, Jaipur

informing the Police authorities that they have cancelled the

provisional admission of the petitioner as he failed to submit the

required documents in the stipulated time.

22. The respondents have also placed on record an application of

the petitioner dated 17.10.2019 wherein he submitted that he will

provide air ticket to Nepal & Yemen within two hours and he will

comply with the High Court's order but he wanted some time to

withdraw money for doing packing, travelling and other

arrangements.

23. The petitioner filed counter to the additional affidavit filed by

the respondents and has reiterated his submissions.

24. Mr.R.D.Rastogi, learned Additional Solicitor General, in

support of his contentions, has placed reliance on the following

judgments:-

(i) Hans Muller of Nurenburg Vs. Superintendent, Presidency

Jail, Calcutta & Ors. reported in AIR 1955 SC 367.

(ii) Order dated 09.11.2017 passed by the coordinate Bench of

this Court in S.B.Criminal Writ Petition No.147/2017 [Ezzaldeen

Abdul Salam Abduljalil Saleh Vs. UOI & Ors.

(D.B. SAW/1582/2019 and 2 more have been filed in this matter. Please refer the same for further orders)

(9 of 14) [CW-17905/2019]

25. I have heard learned counsel for the parties and with their

assistance perused the material available on record.

26. This Court finds that the petitioner was initially issued

Student VISA on 05.06.2013 for doing M.Tech. in Petroleum

Engineering at NIMS University and the same was for a term of

three years. The said Student VISA of the petitioner was

converted into Research VISA on 10/16.06.2016 for pursuing

Ph.D. Course in Chemical Engineering and initially it was extended

upto 04.06.2017, then extended upto 04.06.2018 and further

upto 11.04.2019. The Research VISA of the petitioner was last

extended on 22.04.2019 till 11.04.2000.

27. This Court finds that the entry of a foreign national to pursue

studies in India is governed by the relevant VISA Rules, which

have been framed by the Union of India. This Court also finds that

Student VISA is granted to the foreign nationals and their duration

is also prescribed in VISA Rules. The clauses of Chapter 15 of the

VISA Manual, which are relevant for deciding the present

controversy, are reproduced hereunder:-

"Student VISA 15.1 A Student visa (S-1 or S-2) is granted to a foreigner:

(i) whose sole objective is to pursue on-campus, full time (structured) courses (including English and other language courses and vocational education) at educational institutions (Central/State Government Educational Institutions & Private Educational Institutions) duly recognized by statutory regulatory body and have acquired statutory authorization to conduct the course(s) complying with GST regulations.

(ii) who holds a valid passport, and a re-entry permit if that is required under the law of the country of nationality of the applicant;

(iii) who is not a persona-non-grata to the Government of India;

(D.B. SAW/1582/2019 and 2 more have been filed in this matter. Please refer the same for further orders)

(10 of 14) [CW-17905/2019]

(iv) who is not considered as undesirable person and is not the subject of a black list or any warning circular or other restrictive list;

(v) who produces proof of admission to a full time course in a recognized educational institution of India;

(vi) who produces a letter of approval or a "No Objection Certificate" from the Ministry of Health, in case of admission in a medical or para-medical course;

(vii) who is a person of assured financial standing (A letter of support from the parent/guardian accompanied by a bank guarantee/certificate may be accepted for this purpose);

(viii) who produces, to the satisfaction of the Mission/Post, evidence of transfer of adequate funds for at least 4 months sustenance in India, or produces travelers cheques for a similar amount;

15.2 Validity - A Student visa [S-1 or S-2] will be valid for entry and stay in India within the period of its validity unless specified otherwise and subject to the other conditions that may be specified. Validity of a Student visa will be as indicated below:-

(i) Indian Missions/Posts may grant Student visa to nationals of all countries for a maximum period up to five years or for the duration of the academic course of study, whichever is less (excluding nationals of Pakistan and Bangladesh). The validity of Student Visa shall not exceed 5 years.

15.10 Research Scholar

(vii) Missions/Posts may grant S-5 visa for a period of 3 years or for the duration of the research project, whichever is earlier.

(viii) FRROs/FROs will be competent to extend the S-5 Visa of foreign research scholars staying in India subject to production of (a) valid S-5 Visa, (b) bonafide certificate from the University/Institution of affiliation about his/her pursing the research project indicating the duration of the research project, and (c) evidence of financial resources. The total period of the Visa may be restricted to the during of the project as approved by the Institute of Affiliation or five years, whichever is less. Such foreign scholars may, if required, also be given extension for a period of not more than six months as the last and final extension even after completion of the project in order to enable the research scholar to complete the final formalities of the research project.

(D.B. SAW/1582/2019 and 2 more have been filed in this matter. Please refer the same for further orders)

(11 of 14) [CW-17905/2019]

Note: In rare and exceptional cases, FRRO concerned may grant extension on S-5 Visa beyond 5½ years on 6-monthly basis for a maximum period of 2 years on merit of each case subject to usual checks."

28. A bare perusal of the validity of Student VISA, as per clause

15.2(i) of the VISA Manual shows that a foreign student can get a

Student VISA for a maximum period of five years or for the

duration of the academic course of study, whichever is less and in

any case, the validity of Student VISA shall not exceed five years.

29. A bare perusal of clause 15.10 of the VISA Manual relating to

Research Scholar would reveal that as per sub-clause (vii) of

clause 15.10, a person can get Research VISA for a period of three

years or for the duration of the research project, whichever is

earlier. Sub-clause (viii) of clause 15.10 provides that a foreign

student can pursue his/her research project, as approved by the

Institution of Affiliation upto five years and further extension of

not more than six months, as the last and final extension can be

granted after completion of the project in order to enable the

research scholar to complete the final formalities of the research

project. The 'Note' appended to sub-clause (viii) of clause 15.10

provides that in rare and exceptional cases, the Foreigners

Regional Registration Officer (FRRO) concerned can grant

extension on Research VISA beyond 5½ years on 6-monthly basis

for a maximum period of two years on merits of each case subject

to usual checks.

30. This Court, after considering the facts of the present case,

finds that the petitioner was initially given a Student VISA for

doing his post-graduation and he enjoyed his stay for a period of

three years and later on when the petitioner took admission for

(D.B. SAW/1582/2019 and 2 more have been filed in this matter. Please refer the same for further orders)

(12 of 14) [CW-17905/2019]

doing Ph.D., the outer limit for doing the said course was five

years.

31. This Court finds that the petitioner who took admission in the

year 2019 in Vivekananda Global University, Jaipur, his admission

itself has been cancelled by the said University, as per the

communication dated 25.11.2019 and as such, the petitioner, as

on date, does not have any admission in the Vivekananda Global

University, Jaipur in his favour.

32. The submission of learned counsel for the petitioner that the

petitioner's VISA stay which was granted upto 11.04.2020 has

wrongly been curtailed by the impugned orders dated 03.09.2019

& 04.09.2019, suffice it to say by this Court that in any case, the

petitioner would not be entitled to ask for grant of Research VISA,

as the maximum period from the year 2016 has already expired in

the year 2021 itself.

33. The submission of learned counsel for the petitioner that only

on account of arbitrary action of the respondents, the petitioner

has been deprived to pursue his studies and as such, the

respondent-authorities have not followed the Rules relating to

grant of Student VISA, this Court is afraid to accept the

submission of learned counsel for the petitioner as the right to

remain in India as a student will not be unfettered right and the

same is required to be governed by the Indian Laws and if the

respondent-authorities have found that the petitioner is not having

any proof of his admission in any Institution for pursuing the Ph.D.

Course and further the outer limit has also expired for staying in

(D.B. SAW/1582/2019 and 2 more have been filed in this matter. Please refer the same for further orders)

(13 of 14) [CW-17905/2019]

the Country, no right can be claimed by the petitioner that he

should be allowed to continue to stay in India.

34. The submission of learned counsel for the petitioner that

entire initiation of deporting the petitioner from this Country by

way of giving Exit VISA has started due to animosity developed by

his previous Institute and as such, the action of the respondents

would be treated as suffering from arbitrariness, this Court finds

that even after completing his Masters Degree in the year 2016,

he took three years time to get admission in Ph.D. Course in

Vivekananda Global University, Jaipur and there also his admission

has already been cancelled, the petitioner under one pretext or

the other, cannot seek direction from this Court that he should be

allowed to continue to stay in India.

35. The submission of learned counsel for the petitioner that

Division Bench of this Court had directed the respondent-

authorities to permit the petitioner to stay back and accordingly,

once extension was granted to the petitioner upto 11.04.2020, the

same could not have been prematurely curtailed, suffice it to say

by this Court that the Division Bench of this Court had directed the

respondent-authorities to extend the stay of the petitioner for a

period of ten days and thereafter, the respondent-authorities were

required to take decision for issuance of VISA to the petitioner.

36. There is no quarrel on the proposition that international

relations & exchange programme of different countries permit the

students to go for their studies/higher studies in different

countries and these are part of cultural activities. The academic

activities can be undertaken beyond one's own country, however,

(D.B. SAW/1582/2019 and 2 more have been filed in this matter. Please refer the same for further orders)

(14 of 14) [CW-17905/2019]

studying and duration of stay in another country, needs to be

regulated by way of laws, which are made by the host country.

Unfettered right, if any, claimed by any foreign student, who stays

in any country for pursuing different courses, without having a

valid VISA, cannot be countenanced and as such, the same would

amount to interfering in the policy matter of such country which

grants admission to the foreign nationals within their own country.

37. This Court does not find any arbitrariness in the actions of

the respondents and as such, the mandamus, which is sought by

the petitioner, to permit him to complete his Ph.D. Course, cannot

be granted as the outer limit, as prescribed in the VISA manual,

has already expired and no further extension of VISA can be

granted in favour of the petitioner.

38. Consequently, the instant writ petition, in above terms,

stands dismissed. No costs.

(ASHOK KUMAR GAUR),J

Solanki DS, PS

(D.B. SAW/1582/2019 and 2 more have been filed in this matter. Please refer the same for further orders)

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