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2013 (10) TMI 680 - HC - Indian LawsStatus of a Person - whether NRI or not - eligibility for admission in Post Graduate Medical Course (PG Medical Course) - Applicability of provisions of determination of NRI under the Income Tax Act, 1961 as well as under the relevant provisions of the Foreign Exchange Management Act, 1999 (the FEMA) - Held that:- The definition of word “NRI” was amended by the respondent/College whereby it included the provisions of the FEMA also, the petitioners, who are residents of India, as rightly pointed out by the respondent, have followed a devise to go out of country for work for some time on work permits that too as sales clerk, after having graduated in medicine, only with a view to get themselves admitted in NRI quota for admission in P.G. Medical course. The decision taken by the respondent/College is violative of the principles of natural justice, on considering the record of the petition, the respondent/College had published only a provisional merit list, which does not create any indefeasible rights in favour of the petitioners and the respondent/College has authority to scrutinize the basis on which the petitioners have claimed NRI status - it is of the duty of the respondent/College to properly scrutinize such applications, as the Apex Court in the case of P. A. Inamdar and others Versus State of Maharashtra and others [2005 (8) TMI 614 - SUPREME COURT ] has emphasized that genuine NRI should get benefit of such quota. In the academic years 2011-12 and 2012-13, the respondent/College has considered similarly situated students and have granted admission in P.G. Medical course, however, even if such mistake is committed by the respondent/College, which is not in accordance with the ratio laid down by the Apex Court in P.A.Inamdar case - the petitioners cannot claim any equity - The respondent has rightly relied upon the ratio laid down by the Apex Court in the case of Union of India Vs. International Trading Co. [2003 (5) TMI 480 - SUPREME COURT OF INDIA]. The genuineness of the status of NRI is to be scrutinized and examined by the respondent/College in its true letter and spirit - It is a fact that NRI quota is a reserve quota and, therefore, the respondent/College is duty bound to see that only genuine NRI gets admission in such quota and it should not be a devise to get out of turn admission by way of a backdoor entry as the same would affect other meritorious students, who are otherwise eligible - At the cost of repetition, in facts of these petitions well qualified medical graduates went to UAE, opted for post of clerks/salesman on a paltry salary and stayed there for hardly six months, without any intention to back clearly exhibits the method adopted is not but a devise to get claim NRI status and obtained admission, by a back door entry as other on merits it is not possible to get it. In light of this factual position, the petitioners cannot be considered as bona fide NRIs. The decision of non-inclusion of the petitioners’ names in the final merit list is the subject matter of these petitions and no further aspects are being considered by this Court - the respondent/College should go to the root of the matter and should also inquire whether person claiming to have obtained job and have entered into a contract with the company situated outside India are genuine or not - The respondent/College has to find out whether the student is a bona fide NRI or not – the decision taken by the respondent/College is legal and proper and the same does not require any interference of this Court in its jurisdiction under Article 226 of the Constitution of India – Decided against Petitioner.
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