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TMI Blog2013 (10) TMI 680X X X X Extracts X X X X X X X X Extracts X X X X ..... d cleared the said examination in the academic year 200910 and after completion of internship in the month of January, 2012 the petitioner got degree of M.B.B.S. (4) The petitioner, after obtaining degree of MBBS, applied for job in the Sales Department of a company named AlHazaa Used Spare Parts at Sharjah at United Arab Emirates (UAE). That the said company offered employment to the petitioner, through email dated 22.08.2012 and on the basis of the employment permit, the petitioner travelled to Sharjah on 25.08.2012. That on reaching there the petitioner also went through the necessary medical tests and got a Resident Visa for two years i.e. from 06.09.2012 to 05.09.2014 issued by Office of Consulate General of UAE. That as the petitioner came to know about the advertisement of Post Graduate Medical Course (PG Medical Course) in the respondentCollege, through internet, the petitioner came to Ahmedabad on 15.03.2013 and filled in the form with requisite fees of Rs.15,000/by a demand draft, drawn at Al Ansari Exchange, UAE dated 12.03.2013, payable at Canara Bank Foreign Exchange Department, Ahmedabad. That as per the provisional merit list affixed at the respondentCollege premise ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... petitioner. (7) In response to the notice issued by this Court on 24.05.2013, the respondentCollege has filed affidavitinreply wherein it has been contended that the petitioner has applied for P.G. Medical Course seat under NRI quota for the academic year 201314 pursuant to the advertisement dated 18.03.2013. It is further contended that pursuant to the said advertisement, the respondentCollege has received 84 applications from the candidates upto 25.03.2013 and after initial scrutiny, it was found that 26 applications were received under the category of NRI/NRI children/wards and 58 applications were received under the category of NRI dependents and accordingly provisional merit list was prepared and published on the website of the respondentCollege on 15.05.2013. It is contended the said provisional merit list was subject to detailed scrutiny of the eligibility of applicant for their NRI status. It is contended that such a provisional merit list was published with a view to invite objection, if any, regarding the candidature of the candidates, who had applied under the aforesaid category or for correction of the marks, if any. It is further pointed out that the respondentColleg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iren Shah (supra) squarely applies to the facts of the present case. It is also contended that the statement made by the petitioner that at present the petitioner is resident of UAE is a misnomer and no reliance can be placed upon the certificate issued by the Chartered Accountant. It is further contended that the application seeking NRI status for the purpose of seeking admission in NRI category of the respondentCollege is required to be considered in the background of the ratio laid down by the Apex Court as well as this Court. It is further contended that the definition of "NRI" given in the Rules for Admission cannot be read in isolation and has to be read in light of the ratio laid down by the Apex Court as well as Division Bench of this Court in the cases referred to hereinabove. It is lastly contended that the petitioner cannot be permitted to claim negative equality by citing some instances wherein similarly situated candidate was wrongfully granted admission on mistaken belief. It is therefore contended that the petition deserves to be dismissed. (9) It may be noted that no affidavitinrejoinder is filed by the petitioner (of SCA No.9003/13) to the aforesaid affidavitinrep ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Constitution of India, as no opportunity of hearing was granted to the petitioner. It is further contended that the impugned decision is bad and in violation of principles of natural justice, without any reasoning, except bald reason that the petitioner does not fall in the category of NRI in the context of the aforesaid judgment. It is therefore contended that the impugned action is violative under Article 14 of the Constitution of India. It is further contended that the petitioner stayed out of India for 203 days and the petitioner fulfills the condition of being NRI under the I.T. Act as well as the FEMA and, therefore, the petitioner ought not to have been denied admission in NRI category by the respondentCollege. It is also averred that in the academic years 201112 and 201213 similarly situated candidates have been granted such permission and, therefore, the impugned action is violative of Article 14 of the Constitution of India and hence, it is prayed that the present petition deserves to be allowed. (13) In response to the notice issued by this Court, the respondentCollege has filed affidavitinreply, which is similar to the affidavitinreply filed in the earlier peti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for Trivedi & Gupta for the respondentCollege in all these three petitions. (18) Learned counsel appearing for the parties have been extensively heard and they were permitted to file their written submissions also. (19) During course of hearing, particular details of jobs done by each of the petitioner were discussed, which were submitted by the petitioners to the respondentCollege. Details so submitted by the petitioners to the respondentCollege is submitted by the learned Advocate General in form of a chart, which is as under:- Sr. No. SCA No. Date of arrival/departure Date of work permit issuance by Ministry of Interior General Directorate of Residence & Foreigners Affairs Date of contract & Co. Duration of contract Designation under contract Monthly remuneration (in dirham) 1 9008/13 Arrival to UAE 03.07.12 Arrival to India 20.01.13 Not submitted 16.7.12 Fortune Star Building Material Trading 3.7.12 To 2.7.14 Archives Clerk 5000 2 9007/13 Arrival to UAE 18.06.12 Arrival to India 07.01.13 Not submitted 01.7.12 Fine Art Jewellary (LLC) 18.6.12 To 17.6.14 Sales 5000 3 9003/13 Arrival to UAE 25.08.12 Arrival to India 15.03.13 22.8.12 05.9.2012 Al Haz ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ered by Division Bench of this Court in the case of Vrushali Hiren Shah (supra) and has submitted that the Rules of the respondentCollege are required to be read and interpreted in view of the aforesaid mandate. It was further submitted that in the case of Vrushali Hiren Shah (supra), even though she was technically NRI within the provisions of the I.T. Act, Division Bench of this Court has held that she could not be considered as an NRI merely on the ground that she has stayed less than the required number of days in India. It was submitted that considering the details, which are submitted by the petitioner of SCA No.9003/2013, it is evident that the petitioner of the said petition secured job in a Sales Department of a company named AlHazaa Used Spare Parts, handling used spare parts on a monthly remuneration of 600 dirham. Similarly the petitioner of SCA No.9008/2013 secured job as Archive Clerk in a company named Fortune Star Building Materials on monthly remuneration of 5000 dirham and the petitioner of SCA No.9007/13 secured job in a company named Fine Art Jewellery (L.L.C.) on monthly remuneration of 5000 dirham, even if it is considered that the exchange rate is Rs.16/dirha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h is reproduced hereinbelow: "131. Here itself we are inclined to deal with the question as to seats allocated for NonResident Indians ("NRI" for short) or NRI seats. It is common knowledge that some of the institutions grant admissions to a certain number of students under such quota by charging a higher amount of fee. In fact, the term "NRI" in relation to admissions is a misnomer. By and large, we have noticed in cases after cases coming to this Court, neither the students who get admissions under this category nor their parents are NRIs. In effect and reality, under this category, less meritorious students, but who can afford to bring more money, get admission. During he course of hearing it was pointed out that a limited number of such seats should be made available as the money brought by such students admitted against NRI quota enables the educational institutions to strengthen their level of education and also to enlarge their educational activities. It was also pointed out that people of Indian origin, who have migrated to other countries, have a desire to bring back their children to their own country as they not only get education but also get reunited with the Indian c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s as NRI. It is not the case of the petitioners that their parents are NRIs. (27) It is also an admitted position that the petitioners having come to India on 15.03.2013 (in SCA No.9003/13), 07.01.2013 (in SCA No.9007/13) and 20.01.2013 (in SCA No.9008/13) the petitioners have not gone to UAE, as per the service contract upon which reliance is placed by the petitioners. Cumulatively, considering these facts and the conduct of the petitioners and also considering the facts that the petitioners are well qualified medical graduates, it is not believable that the petitioners had gone to UAE to serve there as Archive Clerk or Sales Clerk and stay there as per their service contract. (28) Division Bench of this Court in the case of Vrushali Hiren Shah (supra) has observed thus: "The central question which falls for our consideration in this petition is as to whether the petitioner can be termed as 'NonResident Indian' in the backdrop of the above factual aspects. For better adjudication of this issue it would be expedient to go through few relevant provisions of law. As per the Gujarat Professional Medical Educational Colleges or Institutions (Regulation of Admission and Payment of F ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nner a person is said to be 'not ordinarily resident' in India in any previous year if such person is an individual who has been a 'nonresident' in India in nine out of ten previous year preceding that year, or has, during the seven previous year preceding that year, been in India for a period or periods amount in all to 729 days or less. We are unable to persuade ourselves to accept the contention of the petitioner trying to draw a necessary corollary flowing from Section 6(1)(a) that as the petitioner was out of India for a total number of 186 days, she would fall within the definition of being a 'NonResident Indian' as explained under the Income Tax Act. Section 6(1)(a) of the Income Tax Act only speaks about 'residence in India' for the purposes of Income Tax Act. We are of the view that as a matter of fact Section 6(1)(a) of the Income Tax Act is absolutely silent as regards the term 'NonResident Indian'. The logical corollary flowing from Section 6(1)(a) cannot be adopted or taken into consideration for the purpose of understanding the meaning of 'NonResident Indian'. Income Tax Act makes it abundantly clear that a 'NonResident' is a person who is not a resident and includes ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e who resides out of the state. TEMPORARY ABSENCE. A person who leaves the state on business trips for brief periods of time, but without an intent to change his residence, is not a nonresident." It may be noted that the concept of reserving a certain quota of seats for NRI students in professional education has been in existence since long. Hon'ble Supreme Court in the case of P.A.Inamdar and others vs. State of Maharashtra and others (supra) clarified the entire situation and provided for regulating admissions in such a quota by making following observations. "131. Here itself we are inclined to deal with the question as to seats allocated for NonResident Indians ("NRI" for short) or NRI seats. It is common knowledge that some of the institutions grant admissions to a certain number of students under such quota by charging a higher amount of fee. In fact, the term "NRI" in relation to admissions is a misnomer. By and large, we have noticed in cases after cases coming to this Court, neither the students who get admissions under this category nor their parents are NRIs. In effect and reality, under this category, less meritorious students, but who can afford to bring more money, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... siding in India for more than one hundred and eightytwo days during the course of the preceding financial year but does not include( A) a person who has gone out of India or who stays outside India, in either case ( a) for or on taking up employment outside India, or (b) for carrying on outside India a business or vocation outside India, or (c) for any other purpose, in such circumstances as would indicate his intention to stay outside India for an uncertain period; (B) a person who has come to or stays in India, in either case, otherwise than ( a) for or on taking up employment in India, or (b) for carrying on in India a business or vocation in India, or (c) for any other purpose, in such circumstances as would indicate his intention to stay in India for an uncertain period; (ii) any person or body corporate registered or incorporated in India, (iii) an office, branch or agency in India owned or controlled by a person resident outside India, (iv) an office, branch or agency outside India owned or controlled by a person resident in India; (w) "person resident outside India" means a person who is not resident in India; (32) It can be seen from the object of the FEMA that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... I" was amended by the respondentCollege after the judgment in the case of Vrushali Hiren Shah (supra) 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. (35) Considering the other limb of arguments raised by Mr.D.C.Dave, learned Senior Counsel for the petitioners (in SCA Nos.90079008 of 2013) that the impugned decision taken by the respondentCollege is violative of the principles of natural justice, on considering the record of the petition, the respondentCollege had published only a provisional merit list, which does not create any indefeasible rights in favour of the petitioners and the respondentCollege has authority to scrutinize the basis on which the petitioners have claimed NRI status. This Court is of the opinion that it is of the duty of the respondentCollege to properly scrutinize such applications, as the Apex Court in the case of P.A.Inamdar (supr ..... X X X X Extracts X X X X X X X X Extracts X X X X
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