VATSA SHAH Vs. STATE OF GUJARAT

JUDGEMENT

(1.) The petitioner, through her father and natural guardian, has preferred the present petition seeking direction to quash and set aside the impugned communication dated 5.7.2019 of the respondent No.2 (Annexure-A) and direct the respondents to treat her at par with NRI candidate for the purposes of admission to the MBBS and other educational courses for the academic year 2019-20 against all categories of seats, including the Government seats under the State quota and grant her admission to the medical college based on the merit-cum-choice.

(2.) The petitioner is an overseas citizen of India (OCI) and holds a British passport. She was born on 28.12.2001 in the State of Gujarat and has passed her examinations of 10th Standard from IGCSE Board and of 12th Standard from Gujarat Board from the schools located in the State of Gujarat. To get admission in the MBBS courses in various medical colleges in India, the clearance of National Entrance Eligibility cum Test (NEET) is mandatory, and therefore, she had also appeared in the said examination. The petitioner had qualified in the NEET by securing 543 marks. It is further case of the petitioner that on 4.5.2018, the respondent No.1 had amended the Gujarat Professional Medical Educational Courses (Regulation of Admission and Fixation of Fees) Rules, 2017 (hereinafter referred to as "the Rules of 2017"). The Ministry of Home Affairs had issued the Notification under Section 7B of the Citizenship Act, 1955 dated 11.4.2005, whereby the OCI students were put at par with NRIs in respect of all facilities available to them in economic, financial, educational fields, except the matter relating to the acquisition of agricultural or plantation properties. For the purpose of admission to MBBS courses the respondent No.1 has adopted the definition of NRI as prescribed in the Income Tax Act 1961 read with Foreign Management Act 1999. The petitioner had accordingly registered herself on-line for admission on 17.6.2019 and her certificates were also verified by the concerned authorities. According to the petitioner, her father received a call from the office of the respondent No.2 from which he gathered that the petitioner would not be eligible for admission to MBBS courses in the medical colleges of Gujarat as she was an OCI. The petitioner, therefore, had made application dated 29.6.2019, requesting the respondent authorities to consider her candidature in the Government seats against NRI quota. The petitioner also filed the Special Civil Application being No.11357 of 2019 seeking prayer to direct the respondents to consider her case against the Government seats, however, the said petition was dismissed by the Court by its order dated 2.7.2019, permitting the petitioner to make fresh representation to the concerned respondent. Accordingly, the petitioner had made fresh representation in respect of her grievance on 3.7.2019, requesting to consider her eligibility for admission against the Government seats, as also NRI seats, however, the respondent Committee vide the impugned communication dated 5.7.2019 (Annexure-A) considered her eligibility for NRI seats and informed the petitioner that her name will be updated and included in the NRI merit list. Being aggrieved by the said communication, the present petition has been filed.

(3.) The petition has been resisted by the respondent No.1 Committee by filing the affidavit-in-reply contending inter alia that the Gujarat Provisional Medical Educational Courses (Regulation of Admission and Fixation of Fees) Rules 2017 govern the process of admissions particularly to be held in Professional Medical Educational Courses. The Rule 4 of the said Rules of 2017 prescribes the eligibility of the candidate for being admitted to the Professional Medical Educational Courses. The said Rule 4 came to be amended vide the Notification dated 4.5.2018 and further amended vide Notification dated 15.6.2019. Accordingly, as per the amended provisions contained in the Rules of 2017, the aspirant candidate has to be a citizen of India, provided he could be NRI and/or a child/ward of NRI and that he has to be born in Gujarat or be a Domicile of Gujarat. It is further contended that considering the particulars of the petitioner and her eligibility for the said course, it was found that the petitioner was not a citizen of India and was a British citizen and was also not the domicile of Gujarat, and therefore, was not qualified as per the amended Rules. The petitioner being eligible for the NRI quota, she was considered accordingly and her name was included in the merit list of NRI students.