TMI Blog2011 (7) TMI 1312X X X X Extracts X X X X X X X X Extracts X X X X ..... letion of her internship in the month of March 2010, the Petitioner proceeded towards U.S.A. in the month of May 2010. In the month of November 2010, the Petitioner returned to India as per the terms of her visa. 3. In February 2011, the Respondent - Smt. N.H.L. Municipal Medical College, which is run and managed by the Ahmedabad Municipal Corporation, put on its website rules for admission for post-graduate courses in the discipline of Medicine for N.R.I. category of seats. 4. The Petitioner applied for admission in the N.R.I. category of seats in the setup of the Respondent pursuant to the rules for the current academic year 2011-2012 at the level of post-graduation in the faculty of Medicine. 5. The Petitioner submitted her application accompanied by relevant documents to show her status as 'Non-Resident Indian' within the meaning of the rules. 6. Record reveals that the application was initially accepted by the Respondent. One of the documents on which the Petitioner relied upon to put forward her claim of being a 'Non-Resident Indian' is a certificate dated 11th March 2011 issued by one Mr. Mukesh M. Patel, an advocate and tax consultant, stating th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Petitioner are as under: 1. It is submitted that the course of action on the part of the Respondent in cancelling the admission of the Petitioner is ex-facie arbitrary in nature and violative of Article 14 of the Constitution of India. 2. It is submitted that as per the rules governing admission to post-graduate courses, the term 'N.R.I.' means 'Non-Resident Indian' as defined under the Income Tax Act, 1961. Relying on Section 6 of the Income Tax Act, learned advocate would submit that as the Petitioner was out of India from 31.5.2010 to 29.11.2010 and from 7.3.2011 to 9.3.2011 i.e. for a total number of 186 days during the financial year, she would fall within the ambit of a 'Non-Resident Indian'. Counsel would submit that since the Petitioner is fulfilling the eligibility criteria of being a 'Non-Resident Indian' as explained under the Income Tax Act and the rules also provided for the definition of 'N.R.I.' as per the Income Tax Act, the Respondent could not have cancelled the admission at the last minute on the premise that the visit of the Petitioner to a foreign country was on a visitor's visa. 3. Counsel would further s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntra, learned Counsel Mr. Abhishek Mehta appearing for the Respondent has put forward the following contentions: 1. It is submitted that on perusal and detailed scrutiny of the relevant documents including the copy of the passport submitted by the Petitioner, it came to the notice of the Respondent that the Petitioner had claimed N.R.I. status in view of the fact that she had visitor's visa for various countries and had stayed outside India for 186 days in the previous year. He would submit that since the Petitioner's stay outside India for 186 days was on visitor's visa, the same was not eligible for consideration as N.R.I. status to get admission on N.R.I. quota and, therefore, the Petitioner, not having the requisite qualifications/criteria for being considered as N.R.I., the PG Admission and Scrutiny Committee took decision and revoked the provisional admission granted to the Petitioner in P.G. Course of General Medicine in N.R.I. quota of the Respondent - College. 2. He would further submit that the principle of promissory estoppel in such type of cases would not be applicable. He would further submit that as a matter of fact there was no promise at all of an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in PG course of General Medicine in NRI quota of the Respondent college. 9. It is humbly and respectfully submitted that the Petitioner has not pointed to the Hon'ble Court that the Petitioner had gone on visitor's visa to various countries including USA and Dubai and was outside India for a period of 186 days. A person who goes on visitor's visa cannot be considered as an NRI for the purpose of granting admission to the PG course under the NRI category of the Respondent college. When the said discrepancy came to light, the same was immediately rectified by informing the Petitioner that her so-called claim of being an NRI was baseless and not tenable and that the Petitioner was not eligible for being admitted under the NRI category for the PG course of the Respondent college. In fact, the Respondent college received a letter dated 13.6.2011 pointing out the fact of the Petitioner having preferred the application under NRI quota of the Respondent college despite the fact that the Petitioner had posed herself to be NRI because she had gone on visitor's visa abroad and was outside India for more than 186 days. The Respondent college immediately took note of the sam ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o the said admission under the NRI quota which has been revoked immediately on the discrepancy having come to light. As far as the certificate attached to the present petition of a Tax Consultant declaring the present Petitioner as an NRI is concerned, the same is also silent on the issue of the Petitioner having remained outside India on visitor's visa and cannot be considered for the purpose of considering the Petitioner's status to be that of an NRI. 15. It is humbly and respectfully submitted that the Respondent college has acted in accordance with the observations of the Hon'ble Supreme Court in P.A. Inamdar's judgment as well as in accordance with the rules for grant of admission under NRI quota and therefore the Petitioner cannot claim any right much less vested right to the admission under the NRI quota. It is denied that the action of revoking the admission of the Petitioner is against the principle of promissory estoppel. In fact, the Respondent college would have perpetuated illegality if it would not have revoked the admission granted provisionally to the Petitioner and the act of the Petitioner in doing so is just, legal and proper. The statement mad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... previous years preceding that year been in India for a period of, or periods amounting in all to, seven hundred and twenty-nine days or less; or (b) a Hindu undivided family whose manager has been a non-resident in India in nine out of the ten previous years preceding that year, or has during the seven previous years preceding that year been in India for a period of, or periods amounting in all to, seven hundred and twenty-nine days or less. 12. On plain reading of the relevant provisions, it is clear as per the definition of 'non-resident' that a person who is not resident is a 'non-resident'. Again 'resident' means a person who is resident in India within the meaning of Section 6. Section 6(1)(a) speaks only about who can be a person to be a resident in India. It is clear that for the purposes of Income Tax Act an individual would be a resident in India if he is in India in that year for a period or periods amounting in all to 182 days or more. This does not mean that if a person, for any reason, is out of India for a period or periods amounting in all to 182 days or more would automatically become a 'non-resident'. In the same manner a perso ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... visitor's visa. A person may be granted visa for a period of five years and when he leaves, he may be uncertain about the period of stay abroad but from that itself it is not possible to reach to a conclusion that such a person is a person resident outside India. 14. The Petitioner had not gone abroad on immigration visa or commonly known as F1/J1 visa but the Petitioner had a visitor's visa in B1/B2 category. It is also not the case of the Petitioner that her parents are staying outside India and are 'Non-Resident Indians . 15. If the contention of the learned Counsel for the Petitioner is accepted and if the logical corollary flowing from Section 6 of the Income Tax Act is blind-foldedly applied, then it would lead to disastrous results. Any person from a affluent family would obtain visa for a period of about six months, stay outside India and upon his or her return to India would straightway claim the status of being a 'Non-Resident Indian'. It is manifest from the plain meaning of 'Non-Resident Indian' that 'Non-Resident Indian' is one who does not live within the jurisdiction in question. 16. As explained by Law Lexicon, the te ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e go-by. The amount of money, in whatever form collected from such NRIs, should be utilized for benefiting students such as from economically weaker sections of the society, whom, on well-defined criteria, the educational institution may admit on subsidised payment of their fee. To prevent misutilisation of such quota or any malpractice referable to NRI quota seats, suitable legislation or regulation needs to be framed. So long as the State does not do it, it will be for the Committees constituted pursuant to the direction in Islamic Academy to regulate. 18. It can thus be seen that in the said decision of P.A. Inamdar and Ors. v. State of Maharashtra and Ors. (supra), the Hon'ble Supreme Court frowned upon admissions being granted to students in NRI quota where neither students nor their parents are NRIs. It was observed that in reality under this category less meritorious students who can afford to bring more money, get admissions. 19. We may now deal with the contention as regards the doctrine of promissory estoppel as canvassed vociferously by the learned Counsel for the Petitioner. As a matter of fact, it is not really necessary for us to go into the question as to w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the college for the postgraduate course after the first round of counselling and now since the admission has been cancelled at the last minute, her entire academic year would be wasted as no other college would admit her and, therefore, the Respondent is estopped under the law from taking the course prejudicial to the Petitioner. 24. For the above purpose, we need only to refer the fact that the Respondent - College did not promise or give an assurance to the Petitioner, which is necessary for the foundation of a true estoppel. 25. In American Jurisprudence, Volume 28, Paragraph 3 at page 601, it is noted that: It is, moreover, recognized that the doctrine of estoppel when misapplied may be almost effective weapon for the accomplishment of injustice. 26. It may not be out of place to mention in this context that the Supreme Court has time and again held in a series of decisions, though in a different context, in Guru Nanak Dev University v. Rajesh Bhaskar, reported in AIR 1993 SC 2412 and in St. John's Teacher Training Institute v. State of Tamil Nadu, reported in AIR 1994 SC 43, that ill-conceived sympathy is subversive to the academic discipline leading to serious ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Petitioner, having already been admitted by the Respondent - College for the post-graduate course, the Respondent could not have cancelled the admission on the premise that the same was on account of mistake or due to oversight of a relevant fact. He would further submit that even if the Petitioner was admitted through mistake, the Petitioner not being at fault, her admission should not have been cancelled. 29. In this regard reliance has been placed on paragraph 17 of the judgment of the Supreme Court in the matter of Ashok Chand Singhvi v. University of Jodhpur and Ors., reported in AIR 1989 SC 823, which reads as under: 17. It is submitted on behalf of the University that it was through mistake that the Appellant was admitted. We are unable to accept the contention. It has been already noticed that both the Dean and the Vice-Chancellor considered the objections raised by the Officer-in-Charge, Admissions, and thereafter direction for admitting the Appellant was made. When after considering all facts and circumstances and also the objections by the office to the Admission of a candidate, the Vice-Chancellor directs the admission of such a candidate, such admission coul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nly on equitable grounds, a procedure which is not sanctioned by law cannot be approved only to mitigate the hardship of such candidates who have sought admissions in the medical college aforesaid. 33. Having considered the entire matter from all angles, we are unable to accept any of the contentions canvassed by learned Counsel for the Petitioner. We are of the view that this issue is a very important issue and it is almost an eye-opener for Respondent - College and all other colleges when it comes to giving admissions in N.R.I. quota. Way back in the year 2005, the Supreme Court in P.A. Inamdar's case observed that such seats should be utilized bonafidely by N.R.Is. only and for their children or wards. To prevent misutilization of such quota or any malpractice referable to N.R.I. quota seats, suitable legislation or regulation needs to be framed. So long as the State does not do it, it will be for the committees constituted pursuant to the directions in Islamic Academic to regulate. 34. We may also quote a Division Bench's judgment of this High Court in the case of State of Gujarat and Anr. v. Brij Kishore Garg, reported in 2000 (1) GLR 884, wherein in paragraph 11 ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
