Karnataka High Court
Meghana Kuruvalli vs The State Of Karnataka on 4 September, 2024
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 4TH DAY OF SEPTEMBER, 2024
PRESENT
THE HON'BLE MR. N. V. ANJARIA, CHIEF JUSTICE
AND
THE HON'BLE MR. JUSTICE K. V. ARAVIND
WRIT PETITION No.15400 OF 2024 (EDN-RES)
BETWEEN:
MEGHANA KURUVALLI,
AGED 18 YEARS,
D/O RENUKA REDDY KURUVALLI,
PRESENTLY RESIDING AT VALMARK CITYVILLE,
VILLAMENT 533, 14TH BLOCK,
OFF BANNERGHATTA MAIN ROAD,
THEJASWINI NAGAR PHASE 1,
HOBLI CHANDRASHEKARPURA,
VILLAGE BEGUR,
BENGALURU-560 076.
...PETITIONER
(BY SRI AJOY KUMAR PATIL, ADVOCATE)
AND:
1. THE STATE OF KARNATAKA,
REPRESENTED BY ITS ADDITIONAL
CHIEF SECRETARY TO GOVERNMENT,
MEDICAL EDUCATION DEPARTMENT,
VIDHANA SOUDHA,
BENGALURU-560 001.
2. KARNATAKA EXAMINATIONS AUTHORITY,
SAMPIGE ROAD,
18TH CROSS, MALLESWARAM,
BENGALURU-560 012,
REPRESENTED BY ITS
EXECUTIVE DIRECTOR.
3. DIRECTORATE OF MEDICAL
EDUCATION IN KARNATAKA,
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BANGALORE MEDICAL COLLEGE
AND RESEARCH INSTITUTE (OLD BUILDING),
K.R. ROAD, FORT,
BENGALURU-560 002,
REPRESENTED BY ITS DIRECTOR.
4. THE UNION OF INDIA,
REPRESENTED BY ITS SECRETARY
TO GOVERNMENT OF INDIA,
MINISTRY OF HOME AFFAIRS,
MAJOR DHYAN CHAND NATIONAL STADIUM,
INDIA GATE,
NEW DELHI-110 001.
...RESPONDENTS
(BY SRI M.N. SUDEV HEGDE, AGA FOR R1 & R3;
SRI N.K. RAMESH, ADVOCATE FOR R2;
SRI K. ARVIND KAMATH, ASGI A/W
SMT. SWATI PANDURANGA, ADOVATE FOR R4)
THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF THE
CONSTITUTION OF INDIA PRAYING TO ISSUE A WRIT OF
CERTIORARI OR ANY OTHER APPROPRIATE WRIT, ORDER OR
DIRECTION QUASHING CLAUSE 6 OF THE IMPUGNED
NOTIFICATION ISSUED THE 2ND RESPONDENT KARNATAKA
EXAMINATIONS AUTHORITY (KEA) PRODUCED AT ANNEXURE-B IN
No. ED/KEA/ADMN/CR-09/2023-24 DATED 09TH JANUARY 2024
(09.01.2024) TO THE EXTENT IT STIPULATES “NO CANDIDATE
SHALL BE ELIGIBLE FOR ADMISSION TO GOVERNMENT SEATS
UNLESS HE IS CITIZEN OF INDIA” AND “ELIGIBILITY FOR OCI/PIO
CANDIDATES SHALL BE AS PER THE DIRECTIONS OF THE
GOVERNMENT” AND ETC.
THIS WRIT PETITION HAVING BEEN HEARD AND RESERVED
FOR ORDERS, COMING ON FOR PRONOUNCEMENT THIS DAY,
CHIEF JUSTICE MADE THE FOLLOWING:
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CORAM: HON’BLE THE CHIEF JUSTICE MR. JUSTICE
N. V. ANJARIA
and
HON’BLE MR. JUSTICE K. V. ARAVINDC.A.V. ORDER
(PER: HON’BLE MR. JUSTICE N.V. ANJARIA)The petitioner, who is the Overseas Citizen of India
cardholder and registered as such under Section 7A of the
Citizenship Act, 1955, by filing this petition under Article 226 of the
Constitution, has amongst other prayers, advanced the prayer to
consider her case for admission to the Bachelor of Medicine and
Bachelor of Surgery as well as to the Bachelor of Dental Surgery
courses for the academic year 2024-25 in the State of Karnataka,
under Article 371J of the Constitution, and under the Karnataka
Educational Institutions (Regulation of Admission in Hyderabad
Karnataka Region) Order, 2013 for the seats earmarked for the
students of Hyderabad-Karnataka Region.
Prayers and Relief
2. In addition to the aforementioned principal prayer to be
grouped together with the category of students under Article 371J
of the Constitution for admission in the Hyderabad-Karnataka or
Kalyana Karnataka quota, the other attendant prayers are made to
set aside Clause 6 of Notification dated 09.01.2024 issued by
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respondent No.2-Karnataka Examination Authority which clause
inter alia contemplates that ‘no candidate shall be eligible for
admission to the Government seats unless he is citizen of India’
and that ‘eligibility for Overseas Citizen of India/Person of Indian
Origin candidates shall be as per the directions of the
Government’. It is further prayed to set aside clause 6.1 of the
Information Bulletin issued by respondent No.1-State of Karnataka
and respondent No.2-Karnataka Examination Authority (KEA)
dated 10.01.2024 to the extent it provides similarly.
2.1 The petitioner has the grievance that the KEA has clubbed
together on its website the Overseas Citizens of India (OCI)
candidates with the Non-Resident India (NRI)/Foreign National
candidates. It is the prayer to set aside the said Clause of
clubbing. Further prayed is to consider the case of the petitioner
under Article 371J of the Constitution in the Hyderabad-Karnataka
Region general category seats. The petitioner wants that she
should be permitted to participate in the seat allotment process and
to chose the seat in the course accordingly.
2.2 The next prayer put forth is to declare that in light of the
decision of the Supreme Court in Anushka Rengunthwar and
others v. Union of India and others [(2023) 11 SCC 209 : AIR
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2023 SC 903], the petitioner is eligible and entitled to appear and
participate in the seat selection and allotment process for the
academic year 2024-2025. The last prayer made by the petitioner
is that the authorities are guilty of contempt of court for violating the
decision of Anushka Rengunthwar (supra), in not treating the
petitioner-the OCI cardholder at par with Indian citizen.
Basic Facts
3. The case of the petitioner inter alia is that although the
petitioner is an Overseas Citizen of India (OCI) Cardholder, she
has studied for the last six years in Ballari, State of Karnataka, that
she has completed her 10th standard examination from Ballari and
further that she has appeared for the 2nd Pre University Certificate
examination, the result of which is awaited.
3.1 It is stated that the petitioner studied in the Hyderabad-
Karnataka Region for six academic years and her father has
studied in the said region for more than seven academic years. It
is the claim of the petitioner that despite her registration as OCI
cardholder, since she was born in Secunderabad, Andhra Pradesh
in India, she can assert the status of Indian citizenship by birth.
The petitioner has subsequently acquired the citizenship of United
Kingdom. Undisputedly, the petitioner is a foreign national with
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citizenship of United Kingdom, whose parents stay at United
Kingdom. The registration certification as OCI Cardholder, copy
figuring on record, reflects such particulars of the petitioner and the
address of United Kingdom.
3.1.1 In paragraph 3 of the petition, following is pleaded
which becomes crux of the case and the grievance of the
petitioner,
“When the petitioner registered online with
KEA to participate in the online counselling for
admission to MBBS/ BDS seats in Karnataka, the
KEA website permitted her to register as a
Foreign National and not as Indian Citizen,
contrary to the law laid down by the Apex Court
… and the only option available to the Petitioner
was to register herself as Foreign National-OCI-
Overseas Citizen of India …”
Governing Admission Rules
3.2 The KEA-respondent No.2 herein issued Notification dated
9th January 2024 in relation to admission to professional courses in
the State of Karnataka for the year 2024-25. It inter alia
contemplates that for the admission to the professional courses to
Government seats in the State of Karnataka, the candidates have
to be Indian citizen. It is clause 6 which so contemplates, for which
the petitioner has grievance.
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The Notification dated 9th January 2024 is issued as per the
Karnataka Selection of Candidates for Admission to Government
Seats in Professional Educational Institutions Rules, 2006, which
are the governing Rules.
3.2.1 Clause 6 of the said Notification dealing with eligibility,
reads as under,
“Eligibility: As per Rule 5(1) of Karnataka
Selection of Candidates for Admission to
Government seats in Professional Educational
Institutions Rules 2006 (Amendments), No
candidates shall be eligible for admission to
Government Seats unless he is a citizen of India
and satisfies any one of the eligibility conditions
specified therein. The candidates who do not
satisfy any of the Clauses / Eligibility Criteria are
not eligible for admission to professional courses
under Government quota seats through KEA,
Eligibility for OCI/PIO candidates for Government
seats shall be as per the directions of the
Government.”
3.2.2 The Information Bulletin in respect of admission issued
by the Karnataka Examination Authority (KEA), has in it clause 6.1,
as part of Clause 6 deals with the eligibility clauses as per Rule
5(1) of CET-2006 Admission Rules to Claim for Government Seats.
Clause 6.1 is reproduced below,
“6.1 No candidate shall be eligible for admission
to Government Seats unless he is a Citizen of
India and satisfies any one of the following
conditions. Eligibility for OCI/PIO candidates for
Government seats shall be as per the directions
of the Government.”
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3.2.3 The aforementioned Admission Rules, 2006 are
framed by the State Government in exercise of powers under
Section 14 of the Karnataka Educational Institutions (Prohibition of
Capitation Fee) Act, 1984. In view of the Rules, the OCI
Cardholders have been clubbed with foreign nationals and are
treated eligible only for the Non-Resident Indian seats in the private
Medical and Dental Colleges. The petitioner has the grievance
about the aforementioned clause No.6 in the Rules and
corresponding clause in 6.1 in the Information Bulletin.
3.2.4 Rule 5 of the Admission Rules, 2006 stipulates thus,
extracting relevant part,
“Eligibility for Government Seats.- No
candidate shall be eligible for admission to
Government Seats unless he is a citizen of India
and satisfies any one of the following conditions,
namely.-
(i) who has studied and passed in one or more
Government or Government recognised
educational institutions located in the State of
Karnataka for a minimum period of SEVEN
academic years commencing from 1st Standard
to IIPUC or 12th Standard as on 1st July of the
year in which the Entrance Test is held and must
have appeared and passed SSLC or 10th
Standard or 12th Standard or equivalent
examination from institutions located in the State
of Karnataka:
Provided that in the case of a candidate
who takes more than one year to pass a class or
-9-standard, the years of academic study is counted
as one year only.
(ii) who has studied and passed I and II year Pre-
University Examination or equivalent examination,
within the State of Karnataka from an educational
institution run or recognised by the State
Government and either of his parents must have
studied in an educational institution run or
recognised by the State Government and located
in the State of Karnataka for a minimum period of
Seven years;
(iii) who is a Horanadu Kannadiga:
Provided that …
(iv) who is a Gadinadu Kannadiga:
Provided that …
(v) whose parent is a defence personnel …
(vi) whose parent is a serving defence personnel...
(vii) whose parent is a defence personnel who had
served in Karnataka for at least one year…
(viii) whose parent is an ex-serviceman, who at
the time of joining the defence service had…
(ix) whose parent is an employee of the Union or
Karnataka State Government undertaking or…
(x) whose parent is a working or retired employee...
(a) …had declared to the employer at the time of
joining any place in Karnataka to be his
hometown; and
(b) …had studied in any Government or
Government recognised educational institutions
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located in Karnataka for not less than seven
years; and
(c) was or is liable for transfer anywhere in India
as per the terms and conditions of employment.
(xi) whose parent is a Member of Parliament
elected from Karnataka;
(xii) whose parent is a serving or retired
employee:-
(a) …
(b) …
(xiii) whose parent is a Jammu and Kashmir
migrant…
3.2.5 Clause 6 of the Notification dated 09.01.2024 and
Clause 6.1 of the Information Bulletin has basis of the aforesaid
Rule 5.
Category of Reservation
3.3 Information Bulletin for admission inter alia provides for
reservation of seats in favour of certain categories as per Rule 9 of
the CET-2006 Admission Rules. The category relevant for the
controversy under consideration is the one mentioned in paragraph
11 (e) of the Bulletin. This category is in respect of reservation of
the seats under Article 371J of the Constitution for Kalyana
Karnataka (KK) or Hyderabad-Karnataka (HK) Region.
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3.3.1 Paragraph 11(e) of the Information Bulletin is as under,
“Reservation as per “The Karnataka Educational
Institutions (Regulations of Admission in the
Hyderabad-Karnataka Region) Order, 2013”
The part of the State called the Hyderabad-
Karnataka Region comprising districts of Bidar,
Gulbarga, Yadgir, Raichur, Koppal and Bellary-
Vijayanagar shall be regarded as the local area.
70% of the available seats in every course
of study in any regional University or educational
institution located in the places referred above in
the local area shall be reserved in favour of the
local persons, in respect of such University or
education institutuion.
8% of the available seats in every course
of study provided in a state wide University or a
statewide educational institution be allocated
among the local candidates of the Hyderabad-
Karnataka Region.
The eligible candidates should produce the
relevant certificate in ANNEXURE-A appended
to this brochure issued by the concerned
Assistant Commissioner during document
verification to become eligible to claim seat
under Hyderabad-Karnataka Reservation
(Article 371(J)) in CET-2024 as per rules.”
3.3.2 Even to category of the candidates who claim benefit
of reservation contemplated under Article 371J of the Constitution,
the aforementioned Karnataka Selection of Candidates for
Admission to Government seats in Professional Educational
Institutions Rules, 2006 would apply. Their eligibility to be
considered for admission to the courses even in the colleges in the
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HK region or KK region would be governed by and determined as
per the aforesaid 2006 Rules read with the conditions of the
Karnataka Educational Institutions (Regulations of Admission in
Hyderabad Karnataka Region) Order, 2013 (hereinafter referred to
as the Hyderabad-Karnataka Order, 2013).
Article 371J of the Constitution
3.4 The moot issue to be addressed is about the acceptability of
the case of the petitioner to be included for the purpose of
admission to the Bachelor of Medicine and Bachelor of Surgery
(MBBS) or Bachelor of Dental Surgery (BDS) course with benefit of
reservation under Article 371J of the Constitution. The criteria for
applying this benefit under Article 371J are contained in the
Hyderabad-Karnataka Order, 2013.
3.4.1 Article 371J of the Constitution which is in respect of
special provisions with respect to the State of Karnataka, is as
under,
“371J. Special provisions with respect to the
State of Karnataka-
(1) The President may, by order made with respect
to the State of Karnataka, provide for any special
responsibility of the Governor for–
(a) establishment of a separate development board
for Hyderabad-Karnataka region with the provision
that a report on the working of the board will be
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placed each year before the State Legislative
Assembly;
(b) equitable allocation of funds for
developmental expenditure over the said region,
subject to the requirements of the State as a
whole; and
(c) equitable opportunities and facilities for the
people belonging to the said region, in matters of
public employment, education and vocational
training, subject to the requirements of the State as
a whole.
(2) An order made under sub-clause (c) of
clause (1) may provide for –
(a) reservation of a proportion of seats in
educational and vocational training institutions in
the Hyderabad-Karnataka region for students who
belong to that region by birth or by domicile; and
(b) identification of posts or classes of posts
under the State Government and in any body or
organisation under the control of the State
Government in the Hyderabad-Karnataka region
and reservation of a proportion of such posts for
persons who belong to that region by birth or by
domicile and for appointment thereto by direct
recruitment or by promotion or in any other manner
as may be specified in the order.”
3.4.2 Sub-clause (c) of clause (1) of Article 371J (1)
provides for extending equitable opportunities and facilities for the
people belonging to the Hyderabad-Karnataka region in the
matters of public employment, education, etc. As per sub-Article
(2), it is stated that an order made under sub-clause (c)
aforementioned may provide for “reservation” to a proportion of
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seats in educational and vocational training institutions in the
Hyderabad-Karnataka region for students who “belong to” that
region by birth or domicile.
3.4.3 The object of insertion of Article 371J in the
Constitution and its legislative background are highlighted in the
subsequent discussion.
Hyderabad-Karnataka Order, 2013
3.5 The Hyderabad-Karnataka Region Order, 2013 published
under the Notification dated 06.11.2013 in the Karnataka Gazette
Extraordinary No.1253 is framed in exercise of powers conferred
by Clause 2 of the Karnataka (Special Responsibility of Governor
for Hyderabad-Karnataka Region) Order, 2013. It will be relevant
to notice certain provisions therefrom.
3.5.1 Clause 6 of the Order is in respect of reservation in
regional universities and educational institutions,
“6. Reservation in Regional Universities and
educational institutions-
(1) Admission to 70% of the available seats in
every course of study in any Regional University or
educational institution referred to in the First
Schedule in the Local area shall be reserved in
favour of the local persons, in respect of such
University or educational institution.
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(2) While determining under sub-paragraph (1)
the number of seats to be reserved in favour of
local persons any fraction of a seat shall be
counted as one:
Provided that there shall be atleast one unreserved
seat.”
3.5.2 Clause 7 is about reservation in State-wide
Universities, extracted hereunder,
“7. Reservation in State-wide Universities and
State-wide educational institutions-
(1) 8% of the available seats in every course of
study provided in a State-wide University or a
State-wide educational institution referred to in the
Second Schedule be allocated among the Local
candidates of the Hyderabad-Karnataka Region.
(2) While determining under sub-paragraph (1)
the number of seats to be reserved in favour of the
local persons, any fraction of a seat shall be
counted as one:
Provided that there shall be at least one
unreserved seat.
(3) While allocating under sub-paragraph (1) the
reserved seats among the local persons in relation
to the local area, fractions of a seat shall be
adjusted by counting the greatest fractions as one
and, if necessary, also the greater of the remaining
fractions as another; and where the fraction to be
so counted cannot be selected by reason of the
factions being equal, the selection shall be by lot:
Provided that there shall be atleast one seat
allocated for the local persons in respect of the
local area.”
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3.5.3 As per Clause 8, if a local person is not available to fill
any seats reserved or allocated in favour of local person, such
seats shall be filled as if it has not been reserved.
3.5.4 Paragraph 3 of the Order is ‘Local Area’ as defined in
Section 2(b). Paragraph 3 states that the part of the State called
the Hyderabad-Karnataka Region comprising of the Districts of
Bidar, Gulbarga, Yadgir, Raichur, Koppal and Bellary-Vijaynagar
will be regarded as local area. The concept of region is made
equivalent to local area as specified in the aforesaid paragraph.
3.5.5 The definition clause in Section 2 (i) defines the word
‘domicile’ to mean ‘local persons’ as provided in paragraph 4 of the
Hyderabad-Karnataka Region Order, 2013. The said paragraph is
reproduced,
“4. Domicile (Local Persons).- A candidate for
admission to any course of study shall be
regarded as a local person in relation to the local
area.-
(a) If he is born in local area, or either of his
parents was born in that region before 1-1-2013,
or either of his parents ordinarily lived in the local
area for more than ten years prior to 1-1-2013
and had their name either in the electoral list or
ration card; or owned any immovable property on
or before 1-1-2013 in the local area; or
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(b) In cases where a minimum educational
qualification has been prescribed for admission.-
(i) If he has studied in an educational institution
or educational institutions in such local area for a
period of not less than Ten consecutive
academic years ending with the academic year in
which he appeared or, as the case may be, first
appeared for the relevant qualifying examination;
or
(ii) Where during the whole or any part of the Ten
consecutive academic years ending with the
academic year in which he appeared or as the
case may be, first appeared for the relevant
qualifying examination he has not studied in any
educational institution, if he has resided in that
local area for a period of not less than Ten years
immediately preceding the date of
commencement of the qualifying examination in
which he appeared or as the case may be, first
appeared; or
(iii) Where either of his parents has studied in an
Educational Institution in such Local area for a
period of Ten consecutive academic years.
(c) In cases where no minimum educational
qualification has been prescribed for admission,
if he or either of his parents has resided in that
local area for a period of not less than Ten years
immediately preceding the date on which the
seat is notified for admission; and
(d) In case of a woman, if she got married to a
local person specified in the clauses (a) to (c)
above.”
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3.5.6 The concept of domicile encapsulated in the above
paragraph mentions about who should be regarded as local person
for the admission to any course of study. It is to be observed that
the concept of domicile classified as local persons necessarily
interlinks and has a conceptual correspondence with the category
of the students to whom the beneficial provisions in the matter of
education under Article 371J of the Constitution could be extended.
3.5.7 As mentioned above, the case of the petitioner is that
she is a local person since she could be said to be satisfying the
requirements of paragraph 4 of the Hyderabad-Karnataka Region
Order, 2013. It is the case that even as the petitioner is OCI
Cardholder, for the purpose of admission to professional courses
including in the reservation earmarked for Hyderabad-Karnataka
category and she is required to be grouped alongwith other Indian
citizens.
Status of Overseas Citizens of India
3.6 Proceeding now to look into the status of OCI Cardholders
under the provisions of the Citizenship Act, 1955, Section 2 (ee) of
the Citizenship Act defines ‘Overseas Citizen of India Cardholder’.
The phrase means a person registered as an Overseas Citizen of
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India Cardholder by the Central Government under section 7A of
the Act of 1955,
3.6.1 Section 7A of the Citizenship Act and other companion
sections leading to Section 7D, fall under the title ‘Overseas
Citizenship’. Section 7A deals with registration of Overseas
Citizens of India Cardholders. This section extracted with
relevance,
“7A. Registration of Overseas Citizen of India
Cardholder―
(1) The Central Government may, subject to such
conditions, restrictions and manner as may be
prescribed, on an application made in this behalf,
register as an Overseas Citizen of India
Cardholder―
(a) any person of full age and capacity,―
(i) who is a citizen of another country, but was a
citizen of India at the time of, or at any time after
the commencement of the Constitution; or
(ii) who is a citizen of another country, but was
eligible to become a citizen of India at the time of
the commencement of the Constitution; or
(iii) who is a citizen of another country, but
belonged to a territory that became part of India
after the 15th day of August, 1947; or
(iv) who is a child or a grandchild or a great
grandchild of such a citizen; or
(b) a person, who is a minor child of a person
mentioned in clause (a); or
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(c) a person, who is a minor child, and whose
both parents are citizens of India or one of the
parents is a citizen of India; or
(d) spouse of foreign origin of a citizen of India or
spouse of foreign origin of an Overseas Citizen of
India Cardholder registered under section 7A and
whose marriage has been registered and
subsisted for a continuous period of not less than
two years immediately preceding the
presentation of the application under this section:
Provided that for the eligibility for registration as
an Overseas Citizen of India Cardholder, such
spouse shall be subjected to prior security
clearance by a competent authority in India:
Provided further that no person, who or either of
whose parents or grandparents or great
grandparents is or had been a citizen of
Pakistan, Bangladesh or such other country as
the Central Government may, by notification in
the Official Gazette, specify, shall be eligible for
registration as an Overseas Citizen of India
Cardholder under this sub-section.
(2) The Central Government may, by notification
in the Official Gazette, specify the date from
which the existing persons of Indian Origin
Cardholders shall be deemed to be Overseas
Citizens of India Cardholders.
Explanation.―For the purposes of this sub-
section, “Persons of Indian Origin Cardholders”
means the persons registered as such under
notification number 26011/4/98 F.I., dated the
19th August, 2002, issued by the Central
Government in this regard.
(3) Notwithstanding anything contained in sub-
section (1), the Central Government may, if it is
satisfied that special circumstances exist, after
recording the circumstances in writing, register a
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person as an Overseas Citizen of India
Cardholder."
3.6.2 As statutorily contemplated, any person who is a
citizen of another country, but was a citizen of India at the time of
or after the commencement of the Constitution may apply for
registration as OCI Cardholder. Thus, the provision presupposes
the factual facet that a person applying for OCI Cardholder status
is a citizen of a country other than India, and not citizen of India. In
the present case, as stated, the petitioner is a citizen of United
Kingdom but registered as OCI Cardholder under Section 7A of the
Citizenship Act.
3.6.3 Section 7B is about conferment of rights on OCI
Cardholders. It is provided that the OCI Cardholders shall be
entitled to such rights as the Government may by notification in
Official Gazette specify in that behalf. Such rights which may be
specified have to be the rights other than the rights specified under
sub-section (2). Sub-section (2) mentions in its sub-clause (a) to (i)
the kinds and categories of rights which shall not be conferred on
OCI Cardholder. Section 7C is about the renunciation of the OCI
Cardholders, whereas Section 7D of the Act is the provision in
respect of cancellation of registration as OCI Cardholder.
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Notifications under Section 7B(1)
3.7 The Government of India through the Ministry of Home
Affairs issued Notification dated 11.04.2005 conferring certain
rights in the nature of facilities on OCI Cardholders. The Ministry of
Overseas India Affairs issued another Notification dated
05.01.2009 which was published in the Gazettee on 06.01.2009
conferring certain further rights on the OCI cardholders. The
Notifications facilitated educational avenues in respect of
professional courses by providing for the OCI Cardholders the
entitlement to appear for All India Pre-Medical Test or such other
tests to make them eligible for admission in pursuance of the
provisions contained in the applicable Acts.
3.7.1 The Ministry of Home Affairs subsequently issued
Notification dated 04.03.2021 which was also in exercise of powers
conferred by sub-section (1) of Section 7B of the Citizenship Act,
1955. This Notification came to be issued in suppression of the
aforementioned previous Notification dated 11.04.2005 and
Notification dated 05.01.2009. As stated, the earlier Notifications
of 2005 and 2009 provided to extend certain facilities to the OCI
cardholders.
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3.7.2 Noticing the provisions of the said Notification dated
04.03.2021, what is relevant for the present case is what is stated
in paragraph 4 in which parity with Non-Resident Indians is
accorded to the OCI cardholders. The said paragraph 4 of the
Notification dated 04.03.2021 is reproduced below,
“Parity with Non-Resident Indians in the matter
of,-
(i) inter-country adoption of Indian children
subject to the compliance of the procedure as
laid down by the competent authority for such
adoption;
(ii) appearing for the all India entrance tests such
as National Eligibility cum Entrance Test, Joint
Entrance Examination (Mains), Joint Entrance
Examination (Advanced) or such other tests to
make them eligible for admission only against
any Non-Resident Indian seat or any
supernumerary seat:
Provided that the OCI cardholder shall not be
eligible for admission against any seat reserved
exclusively for Indian citizens; … ”
3.7.3 What paragraph 4 above contemplates is that the OCI
Cardholders shall be treated at par with Non-Resident Indians, as
provided in sub-clause (ii), for appearing in All India Entrance Tests
such as National Eligibility cum Entrance Test and those other
mentioned in the clause. This is done in order to make them
eligible for admission only against any Non-Resident Indian seat or
any supernumerary seat.
– 24 –
3.7.4 The proviso is unequivocal when it states that the OCI
cardholders shall not be eligible for admission against any seat
which is reserved exclusively for Indian citizens. The parity does
not permit the OCI cardholders to enter into realm or for seats
which is exclusively reserved for Indian citizens. The Explanation
reads as under,
“For the purposes of this notification-
(1) The OCI Cardholder (including a PIO
cardholder) is a foreign national holding passport
of a foreign country and is not a citizen of India.
(2) “Non-Resident Indian” shall have the same
meaning as assigned to it in the Foreign
Exchange Management (Acquisition and
Transfer of Immovable Property in India)
Regulations, 2018 made by the Reserve Bank of
India under the Foreign Exchange Management
Act, 1999 (42 of 1999) and who fulfils the “Non-
Resident Indian” status as per the Income Tax
Act, 1961 (43 of 1961).”
Anushka Rengunthwar
3.8 The aforementioned Notifications issued under Section 7B(1)
of the Citizenship Act, and in particular Notification dated 4th March
2021, came to be considered for its import and applicability by the
Supreme Court in Anushka Rengunthwar (supra). The
Notification dated 4th March 2021 was challenged before the
Supreme Court. Although the decision of the Apex Court has
– 25 –
somewhat different context, the judgment in Anushka
Rengunthwar (supra) throws light on many of the issues and
aspects involved in the present case, to guide this court to address
the controversy. In that view, the said decision may be considered
in its due details.
3.8.1 The petitioners before the Supreme Court were OCI
Cardholders aspiring to become Doctors by pursuing MBBS course
securing the admission through NEET selection process and to
further study the post-graduation and super-speciality in the field of
medicine. At the stage when the notification was challenged, the
petitioners had been preparing to appear in NEET-UG examination
based on the facilitator rights available to them under notification
dated 11th April 2005 and 5th January 2009.
3.8.2 The petitioners had no quarrel with the validity of
Section 7B(1), 7D, 8(1) and 9(1) of the 1955 Act. Accepting the
sovereign power of the respondent-state authorities, the petitioners
were aggrieved only by the manner in which the notification dated
4th March 2021 was issued taking away the existing rights for them.
They contended before the Supreme Court that they are not only
OCI Cardholders, but were resident OCI Cardholders and therefore
they should be treated like any other citizen of India. Since the
– 26 –
impugned notification disentitled them from the process of
admission to the seats to which the Indian citizens are entitled to,
participate in the selection process, they prayed to quash clause
4(ii), its Proviso and Explanation (1) of the notification dated 4th
March 2021. It was the contention that the notification fell foul of
the doctrine of non-retrogression. The Supreme Court addressed
the challenge of such nature.
3.8.3 As per the said notifications of 2005 and 2009, the OCI
cardholders were given right of parity with Non-Resident Indian
(NRIs) in respect of the facilities as notified, including in the field of
education, in-turn had the parity to that extent with Indian citizens.
As per the Notification dated 05.01.2009, the said right to
education in India was extended further to appear for All India Pre-
Medical Test or such other tests to make them eligible for
admission. With issuance of the Notification dated 04.03.2021, the
then existing right of appearing for entrance examination to
compete with Indian citizens for the seats was taken away and
restricted. The admission was allowed only against the seats
reserved for NRIs or for supernumerary seats. This position was
clarified in the proviso to clause 4(ii) of the notification as above, to
provide that the OCI cardholder shall not be eligible for admission
against any seat reservation exclusively for Indian citizens. It was
– 27 –
also provided in the explanation that the OCI cardholder is a
foreign national holding passport from a foreign country and is not
a citizen of India.
3.8.4 It was contended before the Supreme Court that the
Notification dated 04.03.2021 so providing fell foul of the Doctrine
of Non-Retrogression. Since the right which was being bestowed
from the year 2005 was curtailed and reversed instead of making it
progressive and mature to become better right, it was contended
that thereby the rights guaranteed under Articles 14 and 21 of the
Constitution were violated as such right is available to “any person”
even if one is not a citizen of India.
3.8.5 The Supreme Court held that the State had sovereign
power to issue notifications under Section 7D(1) of the Citizenship
Act to confer or alter the rights as provided therein. It was held that
the conferment, withdrawal, modification or alteration of the rights
should be free from arbitrariness. The retroactive effect of the
notification was not approved by the Supreme Court as it had the
repercussion of taking away the existing rights of the OCI
Cardholders given under earlier notifications, which rights were
being enjoyed by the petitioners. Though the notification was
sustained as having been backed by competent sovereign power
– 28 –
under the statute of Citizenship Act, it was held that it is
sustainable prospectively only. It was ruled that the portion of the
notification which provide for suppression of the earlier notifications
and the Clause 4(2), its Proviso and Explanation 1 shall operate
prospectively.
Emanating principles
3.9 The propositions laid down in the process by the Supreme
Court in Anushka Rengunthwar (supra), have beaconing value
for the instant controversy. The decision operates to affirm that the
rights of the OCI Cardholders arise from the statutory notification
which may be issued under Section 7B(1) of 1955 Act. It is such
notification within four corners of which the rights of the OCI
Cardholders would stay and operate. The notification is the only
home for rights, privileges and obligations which may be enjoyed
by class of OCI Cardholders. Such rights are statutory right
defined by statutory prescriptions in the nature of subordinate
legislation. It was observed by the Supreme Court that the right of
the OCI Cardholder is a midway right.
3.9.1 Following observations of Supreme Court invariably
suggest that the State would be justified in treating the citizens of
the Country differently against the non-citizens.
– 29 –
“The decisions relied on by the learned Additional
Solicitor General would indicate that this Court
while considering the right claimed by a foreigner
or who is not a citizen of this country has dealt
with the matter differently and declined to
interfere and grant any relief. If in that light, the
matter is looked into, when there is no dispute to
the fact that the petitioners answer the definition
of “foreigners” as defined under the Foreigners
Act, the said decisions relied upon by the learned
Senior Counsel for the petitioner would not apply
on all fours.” (para 44)3.9.2 It was emphasized that the right available to the OCI
Cardholders is only statutory to operate within the bounds of and in
terms of Section 7B(1) of the Citizenship Act,
“It is no doubt true as contended by the learned
Additional Solicitor General, the right available to
the OCI cardholders is only the statutory right
based on the right that is conferred through a
notification in terms of Section 7-B(1) of the 1955
Act. Sub-section (2) thereto specifically indicates
the right that cannot be conferred even under
sub-section (1) through a notification.”
(para 50)
3.9.3 Noticeably, the submission on behalf of the petitioners
that sub-section (2) of Section 7B of 1955 Act does not exclude
right under Article 14 of the Constitution and that this Article is
available to be invoked, did not find favour of the Supreme Court.
It was observed that the OCI Cardholders are class for themselves
cannot claim parity with Indian citizens in all respects,
“Article 14 of the Constitution can be invoked and
contend discrimination only when persons
– 30 –
similarly placed are treated differently and in that
view the OCI cardholders being a class by
themselves cannot claim parity with the Indian
citizens, except for making an attempt to save
the limited statutory right bestowed.”
(para 53)
3.9.4 A clear proposition could be culled out from what is
observed in Anushka Rengunthwar (supra), that the OCI
Cardholders can enjoy any of those right and nature of rights and
facilities as prescribed and provided for in the notification issued
under Section 7B(1) of the Citizenship Act. It is the statutory
Notification which defines and delimits the rights for the OCI
Cardholders.
Submissions of Petitioner
4. Having set out the aspects, facets and the contours of the
controversy, the rival stand and submissions may be noted.
4.1 Learned advocate Mr. Ajay Kumar Patil for the petitioner,
after highlighting the factual aspects including that the petitioner
passed the 10th standard and Pre-University Certification
examination from Karnataka and that she has got requisite
certificates raised the following submissions,
(i) The respondents are bound to consider the petitioner’s
candidature as eligible candidate for Hyderabad-Karnataka quota
– 31 –
admissions under clause 6(b) read with clause 11(e) of the
Information Bulletin under Article 371J of the Constitution and for
that purpose the petitioner is required to be grouped together with
candidates who are Indian citizens.
(ii) The petitioner has to be treated at par with the Indian citizen
to be permitted to appear for counseling to all professional courses
in general category including for conferring the benefit under Article
371J and the Karnataka Hyderabad Order, 2013.
(iii) Before issuance of notification dated 4th March 2021, the
candidates like petitioner were entitled to be treated as Indian
citizens in the matter of admission to MBBS / BDS course.
(iv) Notification dated 9th January 2024 and the Information
Bulletin are violative of Article 14 of the Constitution, as it
discriminates without any intelligible differentia between the
petitioner and the students with whom the petitioner studied.
(v) The petitioner is entitled to claim benefit under Article 371J of
the Constitution for the reason that she and her father have studied
in Hyderabad-Karnataka or Kalyana Karnataka Region. Therefore,
notwithstanding the petitioner is OCI Cardholder, she is liable to be
treated as Indian citizen.
– 32 –
(vi) The respondents cannot take shelter under the Notification
dated 9th January 2024 and Information Bulletin to deny the benefit
under Article 371J of the Constitution to the petitioner. Her case is
liable to be considered in general category extending the benefit
under the said Article.
(vii) The right of the petitioner to be considered in general
category in Hyderabad-Karnataka quota/category could not be
denied.
(viii) Independent of the right conferred by the notification under
Section 7B of the Citizenship Act, 1955, the petitioner can claim to
be the citizen of India by birth and also by descent, by virtue of
Section 4 of the Citizenship Act, 1955.
(ix) In view of the provisions of Section 7A to 7D in the
Citizenship Act, then substituted by Act 1 of 2015, the person
registered as OCI Cardholder is entitled to all benefits conferred on
Indian citizen and is entitled to all the benefits as Indian citizens.
(x) The petitioner is entitled to be treated at par with Indian
citizens and claim benefit under Article 371J when she and/her
father fulfils the eligibility conditions like domicile and of putting in
minimum years of study in Hyderabad-Karnataka Region.
– 33 –
(xi) The denial by the respondents to consider the case of the
petitioner under Article 371J of the Constitution read with Clause 6-
b and 11(e) of the Information Bulletin is the negation of right in the
seat allotment and chose seats in the private medical dental
colleges, rendering the right to practice the profession in medicine
to be illusory. Thus violates the fundamental rights under Article
19(1)(g) of the Constitution.
(xii) Attempt by the respondents to club the OCI Cardholders with
NRIs for the purpose of eligibility is without any legal basis. When
the petitioner has studied in the Hyderabad-Karnataka Region from
6th standard till II Pre University Certificate examination and that
she has been residing in India, she cannot be clubbed with NRIs.
4.1.1 Learned advocate for the petitioner sought to buttress
his submissions to treat the petitioner at par with the Indian citizens
and to extend the benefit and permitting her to be grouped in the
general category for participation in the quota of Hyderabad-
Karnataka Region, by relying on the judgment of the Supreme
Court in Anushka Rengunthwar (supra).
4.1.2 Learned advocate for the petitioner attempted to
contend that in any view, what Article 371J of the Constitution
– 34 –
contemplates is the social representation and it is not reservation.
Therefore also, there should not be impediment in permitting the
petitioner to fare for the Hyderabad-Karnataka Region quota seats
in general category at par with citizens of India.
Stance of Karnataka Examination Authority
4.2 The statement of objections-cum-affidavit in reply filed by
respondent No.2-KEA evinced its stand. It was stated and
submitted that the question of rights of the OCI Cardholders to be
considered for admission to professional courses is no more res
integra in view of decision of Supreme Court in Anushka
Rengunthwar (supra). It was a clearly stated by KEA that, ‘this
respondent in obedience of the dictum of the Apex Court has
allowed all OCI Cardholders to appear for the CET and also
allowed them to register for allotment of seats through counseling
in the professional courses’. It was stated in the same paragraph 3
of the affidavit-in-reply that, ‘this Respondent will allot Government
seats to OCI/PIO candidates as was being allotted in the earlier
years as per the Judgment of the Apex Court referred to supra’.
4.2.1 The following averments in paragraph 3 of the Affidavit
are made,
“3. This Respondent in obedience of the
dictum of the Apex Court has allowed all OCI
– 35 –
card holders to appear for the CET and also
allowed them to register for allotment of seats
through counseling in the professional courses.
Hence the grievance of the petitioner to this
extent does not merit consideration. It is relevant
to mention here that after the rendering of the
Judgment by the Apex Court in W.P. 891/2021 &
other connected W.Ps, Rule 5 of the Karnataka
Selection of Candidates for Admission to
Government Seats in Professional Educational
Institutions Rules, 2006 has not been amended
by the State Govt. to suitably modify the same to
bring in the provisions in consonance with the
Apex Court Judgment regarding the admission of
OCI/PIO students. In this regard, this respondent
has also addressed a communication to the State
Govt. Since the Information Bulletin had to be
printed, in anticipation of the directions in this
regard from the Government, in the Notification
dated 9/1/2024, in the Eligibility Clause it is
mentioned that ‘the eligibility of OCI/PIO
candidates for Government seats shall be as per
the directions of the Government.’
4.2.2 In view of above stand of KEA, the prayer of the
petitioner in respect of Clause 6 of the Notification dated 9th
January 2024 and with regard to Clause 6.1 of the Information
Bulletin is taken care of and the grievance on that score will not
survive for the petitioner.
4.2.3 Learned advocate for the respondent No.2-KEA,
however submitted emphatically that while the petitioner would be
entitled to be treated in accordance with the law laid down in
Anushka Rengunthwar (supra), her prayer to be included in the
– 36 –
category under Article 371J of the Constitution and to be dealt with
under the Hyderabad Karnataka Order, 2013 for securing
admission in the said quota and to claim the benefit of reservation
is not at all grantable. It was submitted that the rights of the OCI
Cardholders are governed by the Notification issued by the Central
Government dated 4th March 2021 as well as earlier two
notifications dated 11th April 2005 and 5th January 2009 as
discussed and interpreted by the Supreme Court in Anushka
Rengunthwar (supra).
4.2.4 It was submitted that the OCI Cardholders are
admittedly foreigners, not entitled to claim reservation of seats
meant for Indian citizens. It was further submitted that the
reservation of seats under Articles 15, 16 and 30 of the
Constitution are meant for the Indian citizens, the reservation of
seats under Article 371J for Hyderabad-Karnataka or Kalyana
Karnataka students is also to be extended to the said separate
category who are Indian citizens. It was further submitted that in all
earlier proceedings, the Hon’ble Supreme Court and this Court,
while passing the interim orders were categorical to provide that
the OCI Cardholders are to be permitted for admission in the
general merit category only. It was submitted that in Writ Petition
– 37 –
No.11859 of 2020, this Court in the interim order provided
specifically that the petitioner thereof cannot claim any reservation.
Stand of Government
4.3 The stand taken by the state authorities in their statement of
objections was inter alia that notification dated 4th March 2021 is
treated prospective in nature in view of the decision in Anushka
Rengunthwar (supra), to apply to the petitioner and all other
similarly situated OCI Cardholders for their rights and privileges.
Taking the uniform stand that Article 371J benefit and the special
category of Kalyana Karnataka students would not be available to
the petitioner in view that the said provision in the Constitution aims
at uplifting those in the region identified as Hyderabad-Karnataka
with lower literacy, less employment in commercial sector, lesser
participation of women at work place. It was contended that there
were several other social indicators showing lack of development
and progress in the HK region. It was contended that in order to
empower such class of citizens, Article 371J came to be engrafted
into the Constitution.
Submissions by Respondents
4.4 Learned Additional Solicitor General of India Mr. Arvind
Kamat assisted by learned advocate Mrs. Swathi Panduranga,
– 38 –
prefaced his submissions by stating that the petitioner was born on
9th April 2006 in Telangana, who applied for British Citizenship and
was issued the British Passport on 14th December 2012. She is
the citizen of United Kingdom, it was undisputedly stated. The
petitioner stayed upto 4th December 2018 in the Foreign Country-
Britain. He submitted that by virtue of Section 9 of the Citizenship
Act, which contemplate the circumstances leading to termination of
citizenship, the petitioner’s citizenship of India ceased. It was the
next submission that the petitioner as an OCI Cardholder can
exercise the rights availed under Notification issued under Section
7B of the Citizenship Act.
4.4.1 Learned Additional Solicitor General explained the
object of Article 371J of the Constitution, which is, he submitted, is
to uplift the social backwardness. It was submitted that the said
Article is a reservation for those belong to the said Region.
Emphasizing the group of words ‘belong to’ used in Article 371J, it
was submitted that it is indicative of attachment to the region or
area and that the ‘belonging’ contemplated in the Article could be
achieved only by having the citizenship of this country. It was
submitted in furtherance that ‘belong to’ could be only by virtue of
acquisition of the citizenship.
– 39 –
4.4.2 It was submitted that the petitioner has no affinity or
belonging as such and for all purposes with the region for claiming
the 371J benefit. Calling the petitioner to be a local person would
be a misnomer, submitted learned Additional Solicitor General. It
was then submitted that the rights of the OCI Cardholders cannot
be claimed beyond the notification issued under Section 7B of the
Citizenship Act. He submitted that therefore, the rationale lies in
not grouping the OCI Cardholder with Indian citizen for applying
371J reservation.
4.5 Learned Additional Government Advocate Mr. M.N.Sudev
Hegde for respondent Nos.1 and 3 stressed in his submissions that
Article 371J is a reservation. It will not permit entry to OCI
Cardholders which are a separate class not liable to be considered
together with candidates eligible in the Hyderabad-Karnataka
region quota.
4.6 Learned advocate Mr. N.K. Ramesh for respondent No.2-
KEA made the following submissions,
(a) A bare reading of Article 371J of the Constitution suggests
that it is a provision in the nature of reservation. Applying this
special provision in the Constitution to a class of persons governed
by it, amounts to providing a reservation to them in the seats for
– 40 –
professional medical courses. Article 371J(2)(a) specifically uses
the word ‘reservation’.
(b) All reservations are coupled with element of sufferance.
(c) The petitioner claims status of being “local person” under
clause 4(iii) in view of her parent’s status. Both the parents are
Britishers.
(d) The rights of the OCI Cardholders are limited. Such rights
can be withdrawn or cancelled by a stroke of pen.
(e) The OCI Cardholders are considered at par with the citizens
of India for the purposes mentioned in the Notifications, however
they are not citizens of India. Therefore, cannot be equated with
the citizens of India for all and any purposes. For applying
reservation under Article 371J of the Constitution, the petitioner is a
foreigner.
Article 371J – A Special Provision
5. Adverting now to consideration of merits, a vain attempt was
made to contend that the provision of Article 371J, though could be
viewed as special provision, is not a reservation. Therefore, the
petitioner can claim to be in that category at par with Indian citizen,
it was submitted. This myth would stand dispelled once the history
– 41 –
of insertion of the Article in the Constitution is traced and the object
is grasped. The said aspect may be disposed of at the outset.
5.1 As already noticed, from Article 371J of the Constitution is in
respect of special provision with respect to State of Karnataka, in
which one of the providence in sub-clause (c) of clause (1) of the
Article is to extend equitable opportunity and facilities for the
people belonging to the said Region in the matters of public
employment, education and vocational training subject to the
requirements of the State as a whole as per sub-Article (2). The
sub-Article (2) states that an order made under sub-clause (c) of
clause (1) may provide for ‘reservation’ of a proportion of seats in
education institutions in the Hyderabad-Karnataka Region for the
students who belong to the region.
(i) Insertion 5.1.1 The legislative history which brought Article 371J into
the Constitution could be gathered from 164th Report of the
Department-Related Parliamentary Standing Committee on Home
Affairs on Constitution (One Hundred Eighteenth Amendment) Bill,
2012. Copy of the Report was made available to the court by
learned additional government advocate. The Bill sought to
introduce and insert new Article 371J in the Constitution which
– 42 –
provided for special provisions for the erstwhile Hyderabad-
Karnataka Region of the State of Karnataka consisting of districts
of Gulbarga, Bidar, Raichur, Koppal and Yadgir and additionally
included Ballari district to accelerate the development of most
backward region of the State.
5.1.2 The introduction of the Article was evolved on the
basis of the existing models in Article 371D in respect of Telangana
and Article 371(2) relating to Vidharba Region. Article 371D
provides reservations for the residents of Telangana in the matters
of employment opportunities and educational facilities. Article
371(2) makes provision to promote economic development in
Vidharba, Marathwada and rest of Maharashtra Region.
(ii) Background 5.1.3 What was considered while inserting Article 371J was
that during the reorganization of the States on linguistic basis, the
Hyderabad-Karnataka Region which formed part of erstwhile
Hyderabad State, came to be integrated with the State of
Karnataka. The erstwhile State of Hyderabad under the Nizam’s
Rule was extremely backward in terms of socio-economic
development which consisted different districts which were
included in the Hyderabad-Karnataka Region. The Ballari district
– 43 –
which was included last, was originally administered as part of
Madras Residency. The Government of Karnataka had forwarded
a proposal to the Government of India in the year 1998 to amend
Article 371 of the Constitution so as to provide similar provisions in
respect of Hyderabad-Karnataka Region on the lines of Article
371D of the Constitution.
5.1.4 At one stage, the request of the State Government did
not go through, subsequently the State Cabinet in the meeting held
on 4th September 2012 considered and approved the proposal to
accord special status to the Hyderabad-Karnataka Region in the
State of Karnataka which led to introduction of Constitution (One
Hundred Eighteenth Amendment) Bill, 2012 in the Lok Sabha on
7th September 2012 for insertion of Article 371J combining the
elements in Article 371D and Article 371(2) of the Constitution.
5.1.5 While considering the insertion of Article 371J as
special provision, the social indicators in the region in its different
districts and divisions were considered. Also surveyed and
considered were the details and data of health infrastructure,
comparative position of literacy, employment in Government
Sector, skill gaps and all other aspects.
– 44 –
(iii) Survey Presentation
5.1.6 A High Power Committee gone into all the above
aspects. The Committee took note of the book entitled ‘Inclusive
Growth-371 for Development of Hyderabad-Karnataka Region’
written by Dr. Shalini Rajneesh, Dr. Chaya Degaonkar and Smt.
Sangeet N Kattimani, which reflected that the region was in the
trap of backwardness. There was a Dr. Najundappa’s Report.
5.1.7 The representatives of the state government of
Karnataka gave a detailed presentation in support of the proposed
Bill for inserting special provision which dealt with the areas of
deficiencies, infrastructural shortcomings, potentiality of
development and the measures needed to remove the bottlenecks
for all-round development. The reservation in education and in
employment was advocated.
(iv) Object and Reasons 5.1.8 It is with the above background that the Bill was
introduced in the Parliament to insert Article 371J in the
Constitution. According to the Statement of Objects and Reasons
of the Bill, the proposed Article 371 J makes special provisions to
establish an institutional mechanism for equitable allocation of
funds to meet the development needs over the Hyderabad-
– 45 –
Karnataka region, as well as to enhance human resources and
promote employment from the region by providing for local cadres
in service and reservation in educational and vocational training
institutions by an amendment to the Constitution of India.
5.1.9 The Statement of Objects and Reasons of the Bill
further stipulates that the Article 371J in the form of a special
provision seeks to provide for:
(a) establishment of a separate Development Board for the
aforesaid region mentioned above;
(b) provide for equitable allocation of funds for development
over the said region subject to the requirements of the State
as a whole;
(c) provide reservation in public employment through the
constitution of local cadres for domiciles of the region; and
(d) provide for reservation in education and vocational
training institutions for domiciles of the region.
Article 371J is Reservation
5.2 In view of the very nature of the provision in Article 371J of
the Constitution, its legislative history and the background which
led to its introduction and insertion in the Constitution, leave no
room of doubt that it is a Constitutional provision in the nature of
reservation. Reservation is a special facility where the general
– 46 –
object is to uplift, ameliorate and elevate the status of the people of
an area or region who have remained backward in the social-
educational field. The object is to extend them the opportunity and
the accessibility to such opportunity through the special treatment
which may be extended to them.
5.2.1 When special treatment in the nature of reservation in
the field of education is extended to the class of student
candidates, they become a specified targeted or intended class for
upliftment and for availing them the opportunities. In this case, the
students who hail from and belong to the Hyderabad-Karnataka
region or Kalyana Karnataka region as is described, is a special
class of students to whom the seats for admission to the
professional courses are offered.
5.2.2 They are the earmarked class for the specially
intended purpose of Article 371J of the Constitution, which has its
own object to be achieved, namely their upliftment and to elevate
them in terms of opportunities. The class of students from
Hyderabad-Karnataka Region to be treated for the purpose of
reservation under Article 371J for admission to professional
courses like MBBS and BDS are the definite distinct class.
– 47 –
5.2.3 In the above context, the submission of learned
Additional Solicitor General that the phrase ‘belong to’ used in
Article 371J has its own significance, could not be brushed aside
lightly. The beneficial provision under Article 371J is to be made to
extend to those candidate students who are said to be ‘belonging
to the Hyderabad-Karnataka Region’. They must have affiliation to
the region which may not be just in terms of physical concept of
domicile or they claim to be the local persons.
5.2.4 The ‘local person’ as per paragraph 4 of the Karnataka
Hyderabad Order is only in the context of Article 371J of the
Constitution. It would therefore not include the OCI Cardholders,
who are not citizens of India. The benefit of Article 371J and the
reservation quota in that category has to go to citizens of India
belonging to that region. A Foreign National like the petitioner
cannot have and will not have such a claim.
5.2.5 The intent of Article 371J is to empower a special class
of citizens. It is with such avowed purpose that the Parliament,
after indepth study of backwardness and bottlenecks in terms of
developmental opportunities in the region, engrafted Article 371J of
the Constitution. Sub-clause (a) of clause (2) of this Article provide
for ‘reservations’ in the educational institutions for those residing in
– 48 –
the region, for those who belong to the region, for those who need
the opportunities in the educational field so that they could be
brought into the common stream of the society, not allowing them
to be lagged behind only because they belong to a region that lack
infrastructure, opportunities and having bottlenecks for educational
progress.
5.2.6 The petitioner is a citizen of United Kingdom.
Candidate like petitioner who is Foreign National has climbed
upward social mobility. The context of benefit accorded under
Article 371J of the Constitution does not befit to be extended to
such segment or class of candidates. Not only that they constitute
a different class with different characteristics, they could therefore,
not be allowed to take away the benefits of reservation from those
who are deserving. In this view, the claim of the petitioner to be
clubbed together and to be received in a special category under
Article 371J is not tenable either on facts or in law.
Circumscribed Class
5.3 The OCI cardholders are a circumscribed class. They draw
and owe their existence with such nomenclature from the provision
of Section 7A of the Citizenship Act, 1955. They are for all
purposes, foreigners or citizens of foreign country. In other words,
– 49 –
not citizens of India. Even if the petitioner was earlier an Indian
citizen, with voluntarily get registered herself under Section 7A of
the Citizenship Act as an OCI Cardholder, the citizenship of this
Country stood terminated in terms of Section 9 of the Citizenship
Act. It provides that when any citizens of India who by
naturalization, registration or otherwise voluntarily acquires
citizenship of another country, upon such acquisition ceases to be
a citizen of India. The petitioner is a citizen of United Kingdom
registered to have status of OCI Cardholder.
5.3.1 The status of a Registered Overseas Citizen of India is
conferred on them under the statutory provisions of the Citizenship
Act. Further more, the rights or privileges as well as the obligations
of the OCI cardholders is governed under Section 7B of the Act.
5.3.2 As already noted hereinabove, sub-section (1) of
Section 7B says that the OCI cardholder shall be entitled to such
rights as the Central Government may notify by Notification. Sub-
section (2) mentions those rights which cannot be conferred on the
OCI cardholder, which are otherwise available to a citizen of India.
Therefore, the proposition that the rights, the petitioner and any
similarly situated OCI Cardholder can claim are only those which
are set out in the notifications which may be issued by the Central
– 50 –
Government under Section 7B(1) of the Act. In other words, the
rights of the petitioner-OCI cardholder and the exercisability of
such rights cannot travel beyond the Notifications dated
11.04.2005, 05.01.2009 and 04.03.2021 aforementioned issued
under Section 7B(1) of the Citizenship Act. The other provisions
which attend to the rights and obligations of the OCI cardholders
are Section 7C regarding renunciation of OCI cardholder and
cancellation of registration as OCI cardholder is provided in Section
7D of the Act.
Different Characteristics
5.4 Having noticed the nature and object of Article 371J of
the Constitution and the history of its introduction to the
Constitution and further in view of the status which could be
accredited to a OCI Cardholder like the petitioner, it is safe to view
that the category of students who may be extended the benefit
under Article 371J constitute altogether a different and
heterogeneous class, in which the OCI cardholders cannot have
any role. The OCI cardholders are bound in law to be treated not
only as different class than the class of candidates under Article
371J, but the OCI cardholders are class by themselves whose
status is statutorily defined.
– 51 –
5.4.1 The OCI cardholders and the citizens of India do not
belong to same categories in several sense, except as
contemplated in the Notification dated 04.03.2021 and as per the
interpretation to the said Notification attached by the Supreme
Court in Anushka Rengunthwar (supra). It can even be viewed
that the parity in terms of educational right given to the OCI
cardholders is in the limited sense. The parity does not make the
OCI cardholders in the same group to that of citizens of India.
5.4.2 Although for extending opportunities, the OCI
cardholders are treated at the same pedestal. Being on the same
pedestal for some specific purpose would not mean that the two
are homogenous in all respect. The class characteristics of OCI
cardholders are defined in terms of the Notifications issued under
Section 7B(1) of the Citizenship Act. Their rights and privileges are
also defined and delimited accordingly. The parity is of a special
kind, made to operate for specific purpose in a confined area.
5.4.3 The contention of the petitioners herein that their
exclusion from the category of beneficiaries under Article 371J of
the Constitution for the purpose of admission in that quota is
violative of their fundamental rights, have no legs to stand in light of
the law laid down in that regard by the Supreme Court, which
– 52 –
decisions were considered by the Supreme Court in Anushka
Rengunthwar (supra).
5.4.4 In Izhar Ahmed Khan v. Union of India [AIR 1962
SC 1052] was referred to, to quote therefrom,
“It may prima facie sound somewhat
surprising, but it is nevertheless true, that though
the citizens of India are guaranteed the
fundamental rights specified in Article 19 of the
Constitution, the status of citizenship on which the
existence or continuance of the said rights rests is
itself not one of the fundamental rights
guaranteed to anyone. If a law is properly passed
by the Parliament affecting the status of
citizenship of any citizens in the country, it can be
no challenge to the validity of the said law that if
affects the fundamental rights of those whose
citizenship is thereby terminated. Article 19
proceeds on the assumption that the person who
claims the rights guaranteed by it is a citizen of
India. If the basic status of citizenship is validly
terminated by a Parliamentary statute, the person
whose citizenship is validly terminated by a
Parliamentary statute, the person whose
citizenship is terminated has no right to claim the
fundamental rights under Article 19.” (para 38)
5.4.5 In Louis De Raedt v. Union of India [(1991) 3 SCC
554], it was observed that rights under Article 19(1)(d) and 19(1)(e)
are unavailable to the foreigners as they are the rights conferred
only to the citizens. Significantly, it was stated,
“Certainly the machinery of Article 14
cannot be invoked to obtain their fundamental
right.”
– 53 –
5.4.6 Any case and contention of the petitioner herein when
sought to be raised on the aforesaid counts, lacks merit and is
unacceptable. The contention that the persons with disability are
given reservation is misconceived in view of the principle that the
PwD category persons are different class and received different
treatment in law.
Domicile And Citizenship
5.5 Pausing a little, the submission and contention of the
petitioner that she falls with the purview of ‘local person’, entitled to
the benefit of Article 371J and that the Hyderabad-Karnataka
Order, 2013 would govern her rights of admission, may be
attended to. It was harped on behalf of the petitioner that the
petitioner is a local person, as she has put requisite years of
studies in the Hyderabad-Karnataka Region and that she could be
said to have the domicile of the region and on that basis, she is
entitled to be considered for the beneficial reservation under Article
371J.
5.5.1 It would be then relevant to notice the conceptual and
jurisprudential distinction between the domicile and citizenship. In
Shri D.P. Joshi Vs. State of Madhya Bharat and Another, (AIR
1955 SC 334), the Supreme Court observed and explained,
– 54 –
“… But citizenship and domicile represent two
different conceptions. Citizenship has reference to
the political status of a person, and domicile to his
civil rights. A classic statement of the law on this
subject is that of Lord Westbury in Udny v. Udny,
[(1869) LR 1 Sc & Div 441 at 457]. He observes:
“The law of England, and of almost all civilised
countries, ascribes to each individual at his
birth two distinct legal states or conditions: one
by virtue of which he becomes the subject of
some particular country binding him by the tie
of national allegiance, and which may be
called his political status, another by virtue of
which be has ascribed to him the character of
a citizen of some particular country and as
such is possessed of certain municipal rights,
and subject to certain obligations, which latter
character is the civil status or condition of the
individual, and may be quite different from his
political status. The political status may
depend on different laws in different countries;
whereas the civil status is governed
universally by one single principle, namely,
that of domicile, which is the criterion
established by law for the purpose of
determining civil status. For it is on this basis
that the personal rights of the party, that is to
say, the law which determines his majority or
minority, his marriage, succession, testacy or
intestacy, must depend”. (para 7)5.5.2 The Supreme Court stated that under the Constitution,
Article 5 which defines citizenship itself proceeds on the basis that
it is different from domicile, because under that Article, domicile is
not by itself sufficient to confer on a person the status of a
citizenship of this country.
– 55 –
5.5.3 The view was expressed in the following observations
that the law knows only of domicile of a country. It was stated that
domicile has limited reference to the system of law prevails.
“A more serious question is that as the law
knows only of domicile of a country as a whole
and not of any particular place therein, whether
there can be such a thing as Madhya Bharat
domicile apart from Indian domicile. To answer
this question we must examine what the word
“domicile” in law imports. When we speak of a
person as having a domicile of a particular
country, we mean that in certain matters such as
succession minority and marriage he is governed
by the law of that country. Domicile has reference
to the system of law by which a person is
governed, and when we speak of the domicile of a
country, we assume that the same system of law
prevails all over that country. But it might well
happen that laws relating to succession and
marriage might not be the same all over the
country, and that different areas in the State might
have different laws in respect of those matters. In
that case, each area having a distinct set of laws
would itself be regarded as a country for the
purpose of domicile.” (para 8)5.5.4 In Abdur Rahaman v. State [AIR 1964 Patna 384],
which was a judgment relied by learned Additional Solicitor
General, the following observations are found, distinguishing
between domicile and citizenship, by referring to the decision of the
Supreme Court in Central Bank of India v. Ramnarayan [AIR
1955 SC 36], extracting from paragraph 14 of the Patna High Court
judgment,
– 56 –
“A person may have one nationality or
citizenship and a different domicile or he may
have a domicile but no nationality. Ordinarily,
domicile has not the effect of altering a person’s
nationality. In a state, a person may be a member
of civil society alone as distinguished from political
society. His membership of the political society
determines his political status or nationality on
which depends his permanent allegiance, or
personal association to his sovereign. His
membership of the civil society of a particular
locality, that is his domicile, determines his civil
status. In other words, domicile implies
connection with a territory, not membership or
community, which lies at the root of the notion of
‘citizenship’ or ‘nationality’.”
5.5.5 In other words, the citizenship is a political status
whereas the domicile may carry with him certain civil rights. When
a foreign national is registered under Section 7A of the Citizenship
Act as OCI cardholder, a kind of political status is granted to him to
enjoy certain rights which may be conferrable under the law and not
beyond that. This status of OCI cardholdership will override the
idea of domicile for the claimed classification as local person or
having a domicile, when it comes to conferment of benefits to the
OCI cardholders. For the reasons that the rights and obligations of
the OCI cardholders remain within the bounds of law as prescribed
under the law.
Concept of Local Person
5.6 Even otherwise and decisively, the concept of “local person”
envisaged in paragraph 4 of the Hyderabad-Karnataka Region
– 57 –
Order, 2013 has the limited context of Article 371J for its
applicability. For this purpose, the claimed status of local person is
of no avail, even if one goes with the case of the petitioner, when
the petitioner is not Indian citizen but belongs to altogether different
category-OCI cardholder. Article 371J of the Constitution provides
reservation to the candidates of local area.
5.6.1 The petitioner has no sufferings of local area. She is
having no element of permanency belonging to local area. The
concept of local person encapsulated in paragraph 4 and the
concept of “belong to” advocated under Article 371J and the idea of
“local person” contemplated in paragraph 4 of the Hyderabad-
Karnataka Region Order, 2013 cannot be without the element of
affinity of affiliation with the region.
5.6.2 The eligibility as a local person cannot be merely on
the basis of domicile. The eligibility is subject to the candidate
being citizen of India. In the concept of local person as mentioned
for the purpose of Article 371J, the citizenship is inbuilt and
indispensable. The petitioner is a citizen of United Kingdom but
holding OCI cardholdership could hardly be considered to be
qualified to be grouped alongwith the category of the students who
– 58 –
are eligible and entitled to seek the benefit under Article 371J of the
Constitution.
5.6.3 In the discussion to follow, it is delineated and
explained how the class of persons to be governed for the purpose
of Article 371J and the class of OCI Cardholders are distinct and
separate classes and that such classification has rational and
intelligible differentia to be backed by.
Valid Differentia A Mode of Equality
5.7 The true scope of Article 14 of the Constitution is not to
equalize in every situation and in all set of circumstances, even
where the class of persons to be governed under Article 14
possesses different traits and characteristics to make them
different than one another.
5.7.1 The Hon’ble Supreme Court in State of West Bengal
Vs. Anwar Ali Sarkar [(1952) 1 SCC 1] highlighted the scope of
Article 14 in following words,
“… the Article assures to everyone the same rules
of evidence and modes of procedure. In other
words, the same rule must exist for all in similar
circumstances. This principle, however, does not
mean that every law must have universal
application for all persons who are not by nature,
attainment or circumstance, in the same position.”
(para 63)
– 59 –
5.7.2 In very Anwar Ali Sarkar (supra), the Supreme Court
lucidly explained about the valid process of classification to explain
as to when the classification in tune with Article 14 of the
Constitution would be permissible. It was stated that by the
process of classification, the State has power of determining who
should be regarded as a class for the purposes of legislation and in
relation to a law enacted on a particular subject. The Court was
conscious to state that this power, may in some degree is likely to
produce some inequality.
5.7.3 It proceeded to observe,
“… but if a law deals with the liberties of a number
of well-defined classes, it is not open to the
charge of denial of equal protection on the ground
that it has no application to other persons. The
classification permissible, however, must be
based on some real and substantial distinction
bearing a just and reasonable relation to the
objects sought to be attained and cannot be made
arbitrarily and without any substantial basis.
Classification thus means segregation in classes
which have a systematic relation, usually found in
common properties and characteristics. It
postulates a rational basis and does not mean
herding together of certain persons and classes
arbitrarily.” (para 64)
5.7.4 It is well established that Article 14 forbids class
legislation but does not debars reasonable classification. The test
of permissible classification are twined. The first is that the
classification must be founded on an intelligible differentia which
– 60 –
distinguishes persons or things that are grouped together from
others left out of the group. The second test is to be applied is that
the differentia must have a rational relation and nexus to the object
sought to be achieved.
5.7.5 These two tests for valid classification stand satisfied
in not grouping the OCI cardholder with the category of
beneficiaries under Article 371J of the Constitution. The
classification may be founded on different bases such as
geographical according to the objects or occupations or the like.
5.7.6 When the OCI cardholders are to be treated as
different class not to be a part of the beneficiary candidates for
reservation under Article 371J of the Constitution, the differentia is
founded on the considerations of status of the OCI cardholders in
eye of law. The fact that they are non-citizens and the very object
of reservation under Article 371J to select the beneficiaries the
differentiation made for the OCI cardholders like the petitioner to
justify their exclusion has to seek purview of Article 371J as
constitutional and statutory base, more solid than the other
constitution.
– 61 –
Reasonable Classification
5.8 Treating the OCI Cardholder such as the petitioner is, to be
outside the purview of beneficial category of students under Article
371J of the Constitution has its own rationale and legal sanction. In
Anushka Rengunthwar (supra), the Hon’ble Supreme Court while
dealing with one of the submissions of the Additional Solicitor
General touched the aspect, which observations strengthens the
proposition that exclusion of foreigners from a beneficial provision
available to Indian citizen has a sovereign logic,
“… for any sovereign country, the rights and
privileges that are extended to the non-citizens are
in exercise of inviolable sovereign powers and are
essentially unfettered and unqualified. The courts
have consistently declined to interfere in visa,
immigration or such issues relating to foreigners.
The power of exclusion of foreigners being an
incident of sovereignty is that of the Government to
be exercised. The OCI regime is a privilege
extended by the Parliament and the Executive,
falling squarely in the domain of the sovereign
policy of the country.”
5.8.1 It was further stated,
“The citizenship is regulated in Part II
(Articles 5 to 11) of the Constitution of India
pursuant to which the Citizenship Act is enacted to
regulate the same. Section 2(ee) of the Citizenship
Act defines OCI cardholders to mean a person
registered as an Overseas Citizens of India
cardholder by the Central Government under
Section 7-A of the Act. The learned Additional
Solicitor General on referring to the said
constitutional provisions and the Citizenship Act
– 62 –
would point out that the privilege of securing
education in India was pursuant to the conferment
of the same in terms of Section 7-B of the Act by
the issue of notification.” (para 14)
5.8.2 The tests of reasonable classification which Article 14
of the Constitution would permit, are well settled. Different
circumstances and different trappings attached to one class of
persons would make such class a distinct class for the purpose of
application of Article 14 of the Constitution. The persons with
different characteristic, places differently or attached with different
circumstances could be classified differently. Even a single valid
difference amongst the group of persons would in a given case,
would justify the classification. Such classification would not offend
the Equality Clause.
5.8.3 In State of Kerala Vs. N.M. Thomas [(1976) 2 SCC
310], the rule of parity and the rule of differentiation came to be
highlighted by the Supreme Court in the following explicit
observations,
“The rule of parity is the equal treatment of
equals in equal circumstances. The rule of
differentiation is enacting laws differentiating
between different persons or things in different
circumstances. The circumstances which govern
one set of persons or objects may not
necessarily be the same as those governing
another set of persons or objects so that the
question of unequal treatment does not really
arise between persons governed by different
– 63 –
conditions and different sets of circumstances.
The principle of equality does not mean that
every law must have universal application for all
persons who are not by nature, attainment or
circumstances in the same position and the
varying needs of different classes of persons
require special treatment. …” (para 40.3)
5.8.4 The Supreme Court proceeded to observe that the
Legislature understands and appreciates the need of its own
people, that its laws are directed to problems made manifest by
experience and that its discriminations are based upon adequate
grounds. The rule of classification is not a natural and logical
corollary of the rule of equality, but the rule of differentiation is
inherent in the concept of equality. Equality means parity of
treatment under parity of conditions.
5.8.5 The proposition was stated that equality does not
connote absolute equality. A classification in order to be
constitutional must rest on distinctions that are substantial and not
merely illusory. It was stated that the test is whether there is a
reasonable basis for classification free from artificiality and
arbitrariness for not embracing altogether and dividing with rational
omission.
5.8.6 The classification between the class of persons who
would be beneficiary under Article 371J of the Constitution and the
– 64 –
class of OCI Cardholders is not only a classification which stands
defined by relevant parameters, this classification has
constitutional and statutory support. Article 371J of the
Constitution and its purpose and object are the bedrock, whereas,
the statutory trappings identified with the class of OCI Cardholders
under the provisions of the Citizenship Act, 1955 makes a legal
distinction of such class vis-a-vis the class under Article 371J of the
Constitution.
Differentiation For Parity
5.9 The differentiation often becomes necessary to bring out the
state of equality itself. By treating the two classes differently, the
equality which otherwise would remain a valid discrimination would
be achieved. The true concept of parity has its own several
shades and dimensions by making a valid classification, equality is
achieved. In ultimate analysis, equality would expand when the
classification is based on valid criteria.
5.9.1 The parity in law has its own connotation and contours.
When the OCI cardholders are classified differently to be not
included in the category under Article 371J of the Constitution, the
differentiation is substantial and indeed not illusory. By the very
kind and nature of OCI cardholdership and for the very reason that
– 65 –
they are differently governed in law, renders the classification
substantial and rational.
5.9.2 In K.Thimmappa Vs. State Bank of India, [(2001) 2
SCC 259], the Apex Court observed to lay down that when a law is
challenged to be discriminatory essentially on the ground that it
denies equal treatment or protection, the question for determination
by the Court is not whether it has resulted in inequality but whether
there is some differentia which bears a just and reasonable relation
to the object of Legislation. This dictum of law pointedly apply to
the facts of this case.
5.9.3 Having regard to the object for which Article 371J is
inserted in the Constitution, the category of the candidates for
admission to professional courses thereunder not only possesses
the differentia and separate characteristics to become a distinct
class to be valid in eye of law, this differentia has a rational and
reasonable nexus to the object to be carried out for the category of
beneficiaries under Article 371J, for, the provision intends to uplift
the deprived class of Hyderabad-Karnataka Region giving them
reservation and additional opportunity in the field of education.
5.9.4 In Anushka Rengunthwar (supra), the Supreme
Court observed in paragraph 41 that “mere differentiation does not
– 66 –
per se amount to discrimination within the inhibition of the equal
protection clause.” The OCI cardholders who are the foreign
citizens cannot claim the equation with the beneficiary class
governed by the object and purpose of the Article.
6. In view of the stand taken by respondent No.2-Karnataka
Examination Authority in its affidavit-cum-reply and more
particularly in light of what is laid down in the judgment of the
Supreme Court in Anushka Rengunthwar (supra), the eligibility
contemplated for consideration of the petitioner for admission to
professional courses in Clause 6 of the Notification dated 9th
January 2024 and Clause 6.1 of the Information Bulletin shall not
apply, excepting for category under Article 371J of the Constitution
as held above.
6.1 Notwithstanding that the petitioner is not a citizen of India,
she shall be treated for the purpose of admission to the
professional courses in accordance with the law laid down in
Anushka Rengunthwar (supra) by the Apex Court.
6.2 In that view, the condition that ‘no candidate shall be eligible
for admission to government seats unless he is citizen of India’ will
not attach debility for the petitioner as stated in para 6.1 above for
the reason that the rights conferred under Notification dated 4th
– 67 –
March 2021 and the decision in that regard in Anushka
Rengunthwar (supra), would govern.
6.3 The relief to the aforesaid extent is allowed to the petitioner.
6.4 In light of the foregoing reasons and discussion, following is
held and declared,
(i) The rights of the petitioner as OCI Cardholder
registered under Section 7A of the Citizenship Act, 1955,
shall be governed, for the purpose of admission to the
professional courses, in accordance with Notifications of the
Central Government issued under Section 7B(1) of the 1955
Act, and as per the interpretation attached thereto it by the
Supreme Court in Anushka Rengunthwar (supra).
(ii) Neither the aforesaid Notification dated 4th March 2021,
nor the decision of the Supreme Court in Anushka
Rengunthwar (supra), deal with the entitlement of the
persons such as petitioner who is OCI Cardholder, to be
extended the benefit under Article 371J of the Constitution
and for that purpose, Karnataka Educational Institutions
(Regulation of Admission in Hyderabad-Karnataka Region)
Order, 2013.
– 68 –
(iii) As per the reasons supplied in the present judgment,
the category of beneficiaries under Article 371J and for that
purpose Karnataka Educational Institutions (Regulation of
Admission in Hyderabad-Karnataka Region) Order, 2013, are
distinct and separate class, when juxtaposed with the class of
persons who have the status of OCI Cardholders under
Section 7A of the Citizenship Act, 1955.
(iv) Both the above classes are distinct classes with distinct
characteristics in facts and in law, not comparable, nor liable
to be grouped together for the purpose of admissions under
the Hyderabad-Karnataka or Kalyana Karnataka quota under
Article 371J of the Constitution.
(v) Article 371J contemplates and provides for reservation.
It is a special provision to be applied to the specified
category, which is again a special category to be extended
the benefit of reservation, and in whom the petitioner and like
persons would not include. For the several reasons
enumerated, the petitioner does not have the homogeneity to
be treated alike under Article 371J of the Constitution.
(vi) The definition of ‘local person’ conceptualized in
Clause 4 of the Karnataka Educational Institutions
– 69 –
(Regulation of Admission in Hyderabad-Karnataka Region)
Order, 2013, could be said to be delimited with reference to
the category of the persons-students for the benefit of
reservation under Article 371J of the Constitution.
(vii) The provision of Article 371J of the Constitution does
not cover the class of OCI Cardholders and to such class the
Article shall not have the application. Article 371J shall not
be available to the petitioner-OCI Cardholder. The prayer of
the petitioner to be included for the benefit under Article 371J
of the Constitution is declined.
7. The present petition stands declared and disposed of as
above.
Sd/-
(N.V. ANJARIA)
CHIEF JUSTICE
Sd/-
(K.V. ARAVIND)
JUDGE
AHB