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2013 (10) TMI 680 - HC - Indian LawsStatus of a Person - whether NRI or not - eligibility for admission in Post Graduate Medical Course (PG Medical Course) - Applicability of provisions of determination of NRI under the Income Tax Act, 1961 as well as under the relevant provisions of the Foreign Exchange Management Act, 1999 (the FEMA) - Held that - The definition of word NRI was amended by the respondent/College whereby it included the provisions of the FEMA also, the petitioners, who are residents of India, as rightly pointed out by the respondent, have followed a devise to go out of country for work for some time on work permits that too as sales clerk, after having graduated in medicine, only with a view to get themselves admitted in NRI quota for admission in P.G. Medical course. The decision taken by the respondent/College is violative of the principles of natural justice, on considering the record of the petition, the respondent/College had published only a provisional merit list, which does not create any indefeasible rights in favour of the petitioners and the respondent/College has authority to scrutinize the basis on which the petitioners have claimed NRI status - it is of the duty of the respondent/College to properly scrutinize such applications, as the Apex Court in the case of P. A. Inamdar and others Versus State of Maharashtra and others 2005 (8) TMI 614 - SUPREME COURT has emphasized that genuine NRI should get benefit of such quota. In the academic years 2011-12 and 2012-13, the respondent/College has considered similarly situated students and have granted admission in P.G. Medical course, however, even if such mistake is committed by the respondent/College, which is not in accordance with the ratio laid down by the Apex Court in P.A.Inamdar case - the petitioners cannot claim any equity - The respondent has rightly relied upon the ratio laid down by the Apex Court in the case of Union of India Vs. International Trading Co. 2003 (5) TMI 480 - SUPREME COURT OF INDIA . The genuineness of the status of NRI is to be scrutinized and examined by the respondent/College in its true letter and spirit - It is a fact that NRI quota is a reserve quota and, therefore, the respondent/College is duty bound to see that only genuine NRI gets admission in such quota and it should not be a devise to get out of turn admission by way of a backdoor entry as the same would affect other meritorious students, who are otherwise eligible - At the cost of repetition, in facts of these petitions well qualified medical graduates went to UAE, opted for post of clerks/salesman on a paltry salary and stayed there for hardly six months, without any intention to back clearly exhibits the method adopted is not but a devise to get claim NRI status and obtained admission, by a back door entry as other on merits it is not possible to get it. In light of this factual position, the petitioners cannot be considered as bona fide NRIs. The decision of non-inclusion of the petitioners names in the final merit list is the subject matter of these petitions and no further aspects are being considered by this Court - the respondent/College should go to the root of the matter and should also inquire whether person claiming to have obtained job and have entered into a contract with the company situated outside India are genuine or not - The respondent/College has to find out whether the student is a bona fide NRI or not the decision taken by the respondent/College is legal and proper and the same does not require any interference of this Court in its jurisdiction under Article 226 of the Constitution of India Decided against Petitioner.
Issues Involved:
1. Eligibility for NRI status for admission in Post Graduate Medical Courses. 2. Interpretation of the term "NRI" under the Income Tax Act and FEMA. 3. Allegations of discrimination and violation of Article 14 of the Constitution of India. 4. Principles of natural justice and procedural fairness in the admission process. 5. Reliance on previous judgments and legal precedents. Detailed Analysis: 1. Eligibility for NRI Status for Admission in Post Graduate Medical Courses: The court examined whether the petitioners, who had briefly worked in the UAE, qualified as NRIs for the purpose of admission to a Post Graduate Medical Course. The petitioners argued that they had valid Resident Visas and work permits, thus qualifying as NRIs under the Income Tax Act and FEMA. However, the court found that the petitioners' brief employment in unrelated fields and their quick return to India indicated an attempt to misuse the NRI quota for admission. The court emphasized that genuine NRI status should be scrutinized, as per the Supreme Court's decision in P.A. Inamdar vs. State of Maharashtra, which mandates that NRI seats should be utilized bona fide by NRIs and their children or wards. 2. Interpretation of the Term "NRI" under the Income Tax Act and FEMA: The court analyzed the definitions of "Non-Resident" under the Income Tax Act and FEMA. It was noted that merely staying outside India for 182 days or more does not automatically confer NRI status. The court referred to the Division Bench's decision in Vrushali Hiren Shah vs. Smt. NHL Municipal Medical College, which clarified that temporary absence from India does not suffice to establish NRI status. The court concluded that the petitioners, who had brief and unrelated employment stints abroad, did not meet the criteria for NRI status. 3. Allegations of Discrimination and Violation of Article 14 of the Constitution of India: The petitioners alleged that the respondent college discriminated against them by denying admission while granting it to similarly situated candidates in previous years. The court held that even if the college had mistakenly granted admissions in the past, it did not entitle the petitioners to claim equality based on those errors. The principle of "negative equality" was cited, emphasizing that past mistakes do not justify repeating them. 4. Principles of Natural Justice and Procedural Fairness in the Admission Process: The petitioners argued that the college's decision violated principles of natural justice as they were not given an opportunity to be heard. The court found that the provisional merit list did not create any indefeasible rights and that the college was within its rights to scrutinize the applications thoroughly. The court upheld the college's authority to ensure that only genuine NRIs benefit from the reserved quota. 5. Reliance on Previous Judgments and Legal Precedents: The court extensively referred to the Supreme Court's judgment in P.A. Inamdar vs. State of Maharashtra and the Division Bench's decision in Vrushali Hiren Shah vs. Smt. NHL Municipal Medical College. These precedents underscored the need for genuine NRI status and the prevention of misuse of the NRI quota. The court reiterated that the definition of "NRI" must be interpreted in light of these judicial mandates. Conclusion: The petitions were dismissed, with the court affirming that the respondent college's decision to exclude the petitioners from the NRI quota was legal and proper. The court emphasized the need for genuine NRI status and the prevention of backdoor entries through temporary and unrelated employment abroad. The principles of natural justice were upheld, and the allegations of discrimination and violation of Article 14 were found to be unsubstantiated.
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