# CASE DETAILS PALLAVI v. UNION OF INDIA & ORS

- **Citation:** 2023 INSC 782
- **Court:** Supreme Court of India
- **Decided:** 2023-09-01
- **Bench:** S. Ravindra Bhat, Aravind Kumar
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/case-details-pallavi-v-union-of-india-ors-36388
- **Pages:** 15

## Headnote

Issue for consideration: The petitioner-foreign national, challenges
the rejection of candidature to a Post graduate medical seat when she was
allowed to appear in the NEET mains as Overseas Citizen of India Card
cardholder, wherein she participated in the mock rounds and was allotted PG
in Paediatrics in AIIMS, however, just before the fi rst round of counselling
she was informed that she would be treated as an Indian national and not
as a foreign national.
Education/Educational institutions - Medical education -
Admission to post graduate courses - Foreign national holding an
Overseas Citizen of India Card-OCI Card appeared in the written exam
participated in the mock rounds and was off ered PG in Paediatrics in
AIIMS - However, just before the fi rst round of counselling, rejection of
her candidature to a PG medical seat by changing her status from foreign
national to Indian national on basis of the Notifi cation, withdrawing
the privileges conferred upon OCI Card holders regarding their parity
with Indian nationals for appearing in NEET exams - Legality:
Held: Petitioner's eligibility to claim the benefi t of OCI card holder
cannot be denied - Rejection of her candidature not supported in law
- Notifi cation dated 04.03.2021 operated arbitrarily because it indicated
non-application of mind in not saving accrued rights; and the application of
proviso to Clause 4 (ii) of the notifi cation was held to have no nexus with
the objects sought to be achieved - When the right conferred was withdrawn
and altered, in the process leading to such change, it should demonstrate
application of mind, nexus to the object of such withdrawal or modifi cation
943
944
SUPREME COURT REPORTS
[2023] 11 S.C.R.
and any such decision had to be free of arbitrariness - Notifi cation saved
from the vice of non-application of mind and was in fact retroactive - It was
in these circumstances it was held that only those persons who obtained OCI
Cards after 04.03.2021 were rendered ineligible in terms of the notifi cation
- Thus, the issuance of direction to consider the petitioner in remaining
counselling rounds by AIIMS and all participating institutions for PG
Medical seats - Citizenship Act, 1955 - s. 7A to D. [Paras 14-17]
LIST OF CITATIONS AND OTHER REFERENCES
Anushka Rengunthwar & Ors. v. Union of India & Ors. 2023 SCC
Online SC 102 - relied on.
OTHER CASE DETAILS INCLUDING IMPUGNED
ORDER AND APPEARANCES
CIVIL ORIGINAL JURISDICTION: Writ Petition (Civil) No. 642
of 2023.
(UNDER ARTICLE 32 OF THE CONSTITUTION OF INDIA)
Appearances:
Vinay Navare, Sr. Adv., Shivendra Singh, Bikram Dwivedi, Raghav
Gupta, Puneett Singhal, Vikhyat Oberoi, Dr. Mukul Nath Verma, Gharote
Anurag A, Advs. for the Petitioner.
Atul Kumar, Ms. Sweety Singh, Ms. Archana Kumari, Rahul Pandey,
Gaurav Sharma, Dhawal Mohan, Prateek Bhatia, Paranjay Tripathi, Ms.
Ruchi Kohli, Ameya Vikrama Thanvi, Bhuvan Kapoor, Aman Sharma, Ms.
Shagun Thakur, Praveen Gautam, G. S. Makkar, Advs. for the Respondents.
JUDGMENT / ORDER OF THE SUPREME COURT

## Text

[2023] 11 S.C.R. 943 : 2023 INSC 782
CASE DETAILS
PALLAVI
v.
UNION OF INDIA & ORS.
(Writ Petition (Civil) No. 642 of 2023)
SEPTEMBER 01, 2023
[S. RAVINDRA BHAT AND ARAVIND KUMAR, JJ.]
HEADNOTES
Issue for consideration: The petitioner-foreign national, challenges
the rejection of candidature to a Post graduate medical seat when she was
allowed to appear in the NEET mains as Overseas Citizen of India Card
cardholder, wherein she participated in the mock rounds and was allotted PG
in Paediatrics in AIIMS, however, just before the fi rst round of counselling
she was informed that she would be treated as an Indian national and not
as a foreign national.
Education/Educational institutions - Medical education -
Admission to post graduate courses - Foreign national holding an
Overseas Citizen of India Card-OCI Card appeared in the written exam
participated in the mock rounds and was off ered PG in Paediatrics in
AIIMS - However, just before the fi rst round of counselling, rejection of
her candidature to a PG medical seat by changing her status from foreign
national to Indian national on basis of the Notifi cation, withdrawing
the privileges conferred upon OCI Card holders regarding their parity
with Indian nationals for appearing in NEET exams - Legality:
Held: Petitioner's eligibility to claim the benefi t of OCI card holder
cannot be denied - Rejection of her candidature not supported in law
- Notifi cation dated 04.03.2021 operated arbitrarily because it indicated
non-application of mind in not saving accrued rights; and the application of
proviso to Clause 4 (ii) of the notifi cation was held to have no nexus with
the objects sought to be achieved - When the right conferred was withdrawn
and altered, in the process leading to such change, it should demonstrate
application of mind, nexus to the object of such withdrawal or modifi cation
943
944
SUPREME COURT REPORTS
[2023] 11 S.C.R.
and any such decision had to be free of arbitrariness - Notifi cation saved
from the vice of non-application of mind and was in fact retroactive - It was
in these circumstances it was held that only those persons who obtained OCI
Cards after 04.03.2021 were rendered ineligible in terms of the notifi cation
- Thus, the issuance of direction to consider the petitioner in remaining
counselling rounds by AIIMS and all participating institutions for PG
Medical seats - Citizenship Act, 1955 - s. 7A to D. [Paras 14-17]
LIST OF CITATIONS AND OTHER REFERENCES
Anushka Rengunthwar & Ors. v. Union of India & Ors. 2023 SCC
Online SC 102 - relied on.
OTHER CASE DETAILS INCLUDING IMPUGNED
ORDER AND APPEARANCES
CIVIL ORIGINAL JURISDICTION: Writ Petition (Civil) No. 642
of 2023.
(UNDER ARTICLE 32 OF THE CONSTITUTION OF INDIA)
Appearances:
Vinay Navare, Sr. Adv., Shivendra Singh, Bikram Dwivedi, Raghav
Gupta, Puneett Singhal, Vikhyat Oberoi, Dr. Mukul Nath Verma, Gharote
Anurag A, Advs. for the Petitioner.
Atul Kumar, Ms. Sweety Singh, Ms. Archana Kumari, Rahul Pandey,
Gaurav Sharma, Dhawal Mohan, Prateek Bhatia, Paranjay Tripathi, Ms.
Ruchi Kohli, Ameya Vikrama Thanvi, Bhuvan Kapoor, Aman Sharma, Ms.
Shagun Thakur, Praveen Gautam, G. S. Makkar, Advs. for the Respondents.
JUDGMENT / ORDER OF THE SUPREME COURT
JUDGMENT
S. RAVINDRA BHAT, J.
1. The petitioner has approached this Courtseeking relief under
Article 32 of the Constitution aggrieved by the rejection of candidature
945
to a Post Graduate medical seat; the respondent rejected her application
after she was allowed to appear in the written examination and the results
were declared for the NEET (PG) and the INI-CET/2023 (hereafter called
"NEET" collectively).
2. The All India Institute of Medical Sciences(AIIMS), the Nodal
Agency for the NEET test/examination, called for applications from
eligible candidates by publishing a prospectus for NEET process on
07.03.2023. The petitioner applied and was issued the examination
admit card on01.05.2023. She participated and appeared in the NEET
examination on 07.05.2023. The petitioner holds an Overseas Citizen of
India card (hereafter called the "OCI card holder"). She is a U.S. National
and was born on 22.02.1999.
3. The prospectus published by the respondents stipulated the eligibility
conditions which indicated that the candidate should possess a Medical
or Dental Degree and must have completed the required period of 12
months training and should possess a certifi cate of grading system from
the concerned universities/institutions to determine the value of grading in
percentage and the minimum marks in aggregate in MBBS/BDS professional
examinations was to be 55% aggregate or equivalent. In addition, for Foreign
Nationals, No Objection Certifi cate was also deemed essential. This was
to be issued by the Ministry of External Aff airs, Government of India. The
stipulation for OCI candidates and the relevant requirements for admission
into PG courses for Indian Nationals as well as sponsored and Foreign
Nationals, reads as follows:
"Overseas Citizen of India (OCI): Overseas Citizen of India
candidates can apply against Foreign National Seats. OCI
candidates are not required to obtained NOC, however must
upload the scan copy of OCI card on or before date(s) mentioned
in Important Dates Section of Prospectus Part-A.
Section V: Seats available for admission into postgraduate
courses for July 2023 Session of various INIs
The seats available for admission into postgraduate courses in
participating INIs for July 2023 session are of two types
PALLAVI vs. UNION OF INDIA & ORS.
[S. RAVINDRA BHAT, J.]
946
SUPREME COURT REPORTS
[2023] 11 S.C.R.
1.
Seats available for all Indian Nationals (excluding sponsored
& Foreign National seats)
A consolidated list of seats available for admission into
postgraduate courses in participating INIs for July 2023 session
of various INIs will be prepared and published by Examination
section, AIIMS, New Delhi on the basis of offi cial information
received from respective INIs. The INI-wise list received from
various INIs shall be accessible from Seats Available Tab of
the INI-CET portal. These lists are subjected to change as per
the decision of respective INIs and shall be updated as per
information received by the Examination Section, AIIMS, New
Delhi. The list of seats available shall not be changed after
the declaration of the results. The updated consolidated list of
available postgraduate seats for seat allocation (INI-wise and
specialty-wise) for July 2023 session shall be published before
the declaration of results.
2.
Seats available for Sponsored & Foreign National
The list of INI-wise and Specialty-wise available seats for
Sponsored & Foreign Nationals will be accessible through
Seats Available Tab on or before starting of "completion of
application" as per mentioned in the "Important dates Tab".
4. The petitioner's application listed her as the OCI candidate, and
she appeared in the examination in that capacity; the results declared on
13.05.2023 showed that she had secured 96.73 percentile, and her overall
rank was 1902. It is asserted that this list also recognized her in OCI
category. Her roll number was mentioned in the provisionally qualifi ed list
of candidates published on 13.05.2023.
5. The communication dated 25.05.20231 provided information for the
fi rst and second round of online seat allocation by institution and subject
wise. The AIIMS issued a schedule for online seat allocation for admission
to PG courses (Notice No. 97/2023) on 10.06.2023. On the same day, the
petitioner was informed that she would be treated as a Foreign National as
1
No. F. AIIMS/EXAM.SEC. /4-5/(INI-CET-PG-June-2023)/2023.
947
she had disclosed her status to be as OCI Candidate2. She was informed
that the mock round of application process had begun on 11.06.2023 and
would end on 13.06.2023.
6. On 15.06.2023, the result of online mock round was announced.
The petitioner was allotted the 'pediatrics' discipline in AIIMS. This is
evident from the announcement of online mock seat allocation before
the fi rst round published on 15.06.2023. In light of these developments,
suddenly on 19.06.2023, she was informed that, she would no longer be
treated as OCI candidate, but would be considered in the category of "Indian
National". This was published by virtue of a public notice No. 119/2023;
an e-mail communication was received by the petitioner to that eff ect on
19.06.2023 itself.
7. As the fi rst-round of counselling was about to commence on
23.06.2023, the petitioner was informed and alleges that she had no choice
but to opt for status of an Indian National which she did, under protest
and participated in the fi rst counselling round. Therefore, she approached
this Court immediately thereafter, on 21.06.2023, contending that despite
completion of entire process and there being no error or mistake on her part,
the change of her status had reduced the chances of her securing admission in
the PG Medical Course considerably. It is contended by her that the change
of status presumably on the basis of a Central Government notifi cation
dated 04.03.2021 is unfair given that she has in all senses of the term burnt
or foreclosed her options.
8. It is contended that for all practical purposes, from the year 2005 and
especially her higher education trajectory made her eligible for admission
as a foreign national having an OCI card. The apparent decision of AIIMS
to treat the petitioner as Indian national is unfair and arbitrary.
9. It is contended by Mr. Vinay Navare, Ld. Senior Counsel, on behalf
of the petitioner that the basis for this change of stand appears to be the
Ministry of Home Aff airs Notifi cation dated 04.03.20213, under the head
(Parity with Non-Resident Indians in the matter of admission to NEET)
2
(The eligibility criteria for candidates holding OCI Card was dated 10.06.2023).
3
Issued under Section 7B of the Citizenship Act, 1955.
PALLAVI vs. UNION OF INDIA & ORS.
[S. RAVINDRA BHAT, J.]
948
SUPREME COURT REPORTS
[2023] 11 S.C.R.
indicated an exception that OCI card holder are ineligible for admissions
to seats exclusively reserved for Indian citizens.
10. Mr. Navare argued that the notifi cation was the subject matter of a
judgment of this court in Anushka Rengunthwar & Ors. V. Union of India &
Ors4. It was submitted that this court recognized that the Central government
could issue the notifi cation of the kind which it did on 04.03.2021 in regard
to the matters, enumerated or provided for. Yet at the same time, the Court
categorically ruled that retrospective eff ect could not be given to that
notifi cation and that despite it seemingly on its application it did have an
element of retroactive application. The court ruled that the OCI card holder
status meant that persons like petitioner are treated as overseas citizens of
India and Sections 7A to 7D of the Citizenship Act, 1955, (hereafter "the
1955 Act") enacted the procedure for their registration and cancellation,
keeping in mind that the earlier notifi cation dated 11.04.2005, 05.01.2007
and 05.01.2009 had enabled such OCI cardholders to apply for educational
institutions in India and the state could not deny them such benefi ts abruptly.
It was emphasized that the Court, therefore, declared that the operation of
notifi cation which provided for supersession of earlier notifi cations and
clause 4 (ii) and its proviso and explanation could operate only prospectively
in respect of OCI Card holder who have secured admission consequently
on04.03.2021.It was submitted that in the present case the OCI card was
issued to the petitioner prior to that date,i.e., on 02.11.2015.
11. Mr. Atul Kumar, learned counsel relied upon the notifi cation dated
04.03.2021 and submitted that this Court in Anushka(supra) clearly held
that it had prospective eff ect. This meant that for all subsequent years i.e.,
after 2021-22, the notifi cation was applicable. It was contended that in any
event since the petitioner was born much prior to 04.03.2021, the application
of the notifi cation (04.03.2021) operated with eff ect from the date of the
judgment i.e., 03.02.2023.
12. AIIMS fi nds fault with the petitioner for not disclosing that she
was an OCI Card holder prior to 04.03.2021, which had to be viewed as
a special factor regard upon had to the law declared in Anushka (supra).
4
2023 SCC Online SC 102.
949
Analysis and Conclusions
13. The judgment in Anushka (supra) analyzed the position with respect
to various provisions of the Foreigners Act, 1946 and the Citizenship Act,
1955, especially Sections 7A to 7D and the notifi cations prior to the one
in question, i.e., dated 11.04.2005, 05.01.2007 and 05.01.2009 which also
were issued under Section 7B of the 1955 Act. Each of the notifi cations had
declared that OCI Card holder are to be treated and granted status at par with
Non Resident Indians (NRIs) and Indian Nationals, including appearing in
All India Pre-medical Test and all such other tests to render them eligible
for admission pursuant to provisions of the relevant Act.
The notifi cation dated 04.03.2021 pertinently states as follows:
"MINISTRY OF HOME AFFAIRSNOTIFICATION
 New Delhi, the 4th March, 2021
"S.O. 1050(E) - In exercise of the powers conferred by sub-section
(1) of section 7B of the Citizenship Act, 1955 (57 of 1955) and in
supersession of the notifi cation of the Government of India in the
Ministry of Home Aff airs published in the Offi cial Gazette vide
number S.O. 542(E), dated the 11th April, 2005 and the notifi cations
of the Government of India in the erstwhile Ministry of Overseas
Indian Aff airs published in the Offi cial Gazette vide numbers S.O.
12(E), dated the 5th January, 2007 and S.O. 36(E), dated the 5th
January, 2009, except as respect things done or omitted to be done
before such supersession, the Central Government hereby specifi es
the following rights to which an Overseas Citizen of India Cardholder
(hereinafter referred to as the OCI cardholder) shall be entitled, with
eff ect from the date of publication of this notifi cation in the Offi cial
Gazette, namely;-
(4) parity with Non-Resident Indians in the matter of: -
(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;
PALLAVI vs. UNION OF INDIA & ORS.
[S. RAVINDRA BHAT, J.]
950
SUPREME COURT REPORTS
[2023] 11 S.C.R.
Provided that the OCI cardholder shall not be eligible for admission
against any seat reserved exclusively for Indian citizens."
14. The facts in this case are not disputed; undoubtedly the petitioner
was treated as a foreign national and allowed to appear in the NEET mains-
as OCI cardholder; she even secured a fairly high rank. She was allowed
to participate in the mock rounds of allocations which led to an indication
that she would be off ered PG in Paediatrics in AIIMS and just before the
fi rst round of counselling she was informed that her status would no longer
be as a foreign national and that she would be treated as an Indian national.
15. A plain reading of the notifi cation undoubtedly leads one to
conclude that it withdraws the eligibility or privileges which had been
hitherto conferred upon OCI Card holders regarding their parity with Indian
nationals for appearing in All India examinations such as NEET. This meant
that after the date of issuance of that notifi cation, i.e. 04.03.2021, such OCI
card holders could not claim the privilege of eligibility for admission in
any competitive entrance examination "any seat reserved exclusively for
Indian citizens" was an abrupt notifi cations all these notifi cations were
somewhat softened by of the retroactive application facially was that all
OCI Card holders who had planned their academic careers based upon preexisting notifi cations dated 11.04.2005, 05.01.2007 and 05.01.2009 were
held to be eligible to continue with that privilege in terms of the judgment in
Anushka (supra). The relevant portions of the judgment in Anushka (supra)
are extracted below:
"45. However, what is necessary to be taken note is that the right
which was bestowed through the notifi cation dated 11.04.2005 and
05.01.2009 insofar as the educational parity, including in the matter of
appearing for the All-India Pre-Medical Test or such other tests to make
them eligible for admission has been completely altered. Though the
notifi cation ex facie may not specify retrospective application, the eff ect
of superseding the earlier notifi cations and the proviso introduced to
clause 4(ii) would make the impugned notifi cation dated 04.03.2021
'retroactive' insofar as taking away the assured right based on which
the petitioners and similarly placed persons have altered their position
and have adjusted the life's trajectory with the hope of furthering their
career in professional education.
951
46. The learned senior counsel for the petitioners would in that context
contend that since sub-section (2) to Section 7B of Act, 1955 does not
exclude the right under Article 14of the Constitution, it is available to
be invoked and such discrimination contemplated in the notifi cation
to exclude theOCI Cardholders should be struck down. Article 14 of
the Constitution can be invoked and contend discrimination only when
persons similarly placed are treated diff erently 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. To that extent certainly the fairness in the
procedure adopted has a nexus with the object for which change is
made and the application of mind by the Respondent No. 1, before
issuing the impugned notifi cation requires examination.
47. As noted, the right of the OCI Cardholders is a midway right in
the absence of dual citizenship. When a statutory right was conferred
and such right is being withdrawn through a notifi cation, the process
for withdrawal is required to demonstrate that the action taken is
reasonable and has nexus to the purpose. It should not be arbitrary,
without basis and exercise of such power cannot be exercised unmindful
of consequences merely because it is a sovereign power. To examine this
aspect, in addition to the contentions urged by the learned Additional
Solicitor General we have also taken note of the objection statement
fi led with the writ petition. Though detailed contentions are urged
with regard to the status of a citizen and the sovereign power of the
State, as already noted, in these petitions the sovereign power has
not been questioned but the manner in which it is exercised in the
present circumstance is objected. The contention of learned Additional
Solicitor General is that the intention from the beginning was to
grant parity to OCI Cardholders only with NRIs. On that aspect as
already noted above we have seen the nature of the benefi t that had
been extended to the petitioners and the similarly placed petitioners
under the notifi cations of the year 2005, 2007 and 2009. The further
contention insofar as equating the OCI Cardholders to compete only
for the seats which are reserved for NRIs and to exclude the OCI
Cardholders for admission against any seat reserved exclusively for
the Indian citizens, across the board, even to the persons who were
PALLAVI vs. UNION OF INDIA & ORS.
[S. RAVINDRA BHAT, J.]
952
SUPREME COURT REPORTS
[2023] 11 S.C.R.
bestowed the right earlier, it is stated that the rationale is to protect
the rights of the Indian citizens in such matters where State may give
preference to its citizens vis-à-vis foreigners holding OCI Cards. It
is further averred in the counter that number of seats available for
medical and engineering courses in India are very limited and that it
does not fully cater to the requirement of even the Indian citizens. It
is therefore contended that the right to admission to such seats should
primarily be available to the Indian citizens instead of foreigners,
including OCI Cardholders.
48. Except for the bare statement in the objection statement, there is
no material with regard to the actual exercise undertaken to arrive
at a conclusion that the participation of OCI Cardholders in the
selection process has denied the opportunity of professional education
to the Indian citizens. There are no details made available about the
consideration made as to, over the years how many OCI cardholders
have succeeded in getting a seat after competing in the selection
process by which there was denial of seats to Indian Citizens though
they were similar merit-wise.
******************
********************
52. Therefore it is evident that the object of providing the right in the
year 2005 for issue of OCIcards was in response to the demand for
dual citizenship and as such, as an alternative to dual citizenship
which was not recognised, the OCI card benefi t was extended. If in
that light, the details of the fi rst petitioner taken note hereinabove is
analysed in that context, though the option of getting the petitioner
No. 1 registered as a citizen under Section 4 of Act, 1955 by seeking
citizenship by descent soon after her birth or even by registration of
the citizenship as provided under Section 5 of Act, 1955, was available
in the instant facts to her parents, when immediately after the birth of
petitioner No. 1 the provision for issue of OCI cards was statutorily
recognised and under the notifi cation the right to education was also
provided, the need for parents of petitioner No. 1 to make a choice to
acquire the citizenship by descent or to renounce the citizenship of the
foreign country and seek registration of the Citizenship of India did
not arise to be made, since as an alternative to dual citizenship the
953
benefi t had been granted and was available to petitioner No. 1 and the
entire future was planned on that basis and that situation continued
till the year 2021.
53. Further, as on the year 2021 when the impugned notifi cation
was issued the petitioner No. 1 was just about 18 years i.e., full age
and even if at that stage, the petitioner was to renounce and seek for
citizenship of India as provided under Section 5(1)(f)(g), the duration
for such process would disentitle her the benefi t of the entire education
course from pre-school stage pursued by her in India and the benefi t
for appearing for the Pre-Medical Test which was available to her will
be erased in one stroke. Neither would she get any special benefi t in
the country where she was born. Therefore in that circumstance when
there was an assurance from a sovereign State to persons like that of the
petitioner No. 1 in view of the right provided through the notifi cation
issued under Section 7B(1) of Act, 1955 and all 'things were done' by
such Overseas Citizens of India to take benefi t of it and when it was the
stage of maturing into the benefi t of competing for the seat, all 'such
things done' should not have been undone and nullifi ed with the issue
of the impugned notifi cation by superseding the earlier notifi cations
so as to take away even the benefi t that was held out to them.
54. Therefore, on the face of it the impugned notifi cation not saving
such accrued rights would indicate non application of mind and
arbitrariness in the action. Further in such circumstance when the
stated object was to make available more seats for the Indian Citizens
and it is demonstrated that seats have remained vacant, the object for
which such notifi cation was issued even without saving the rights and
excluding the petitioners and similarly placed OCI Cardholders with
the other students is to be classifi ed as one without nexus to the object.
As taken note earlier during the course this order, the right which
was granted to the OCI cardholders in parity with the NRIs was to
appear for the Pre-Medical Entrance Test along with all other similar
candidates i.e. the Indian citizens. In a situation where it has been
demonstrated that the petitioner No. 1 being born in the year 2003,
has been residing in India since 2006 and has received her education
in India, such student who has pursued her education by having the
PALLAVI vs. UNION OF INDIA & ORS.
[S. RAVINDRA BHAT, J.]
954
SUPREME COURT REPORTS
[2023] 11 S.C.R.
same 'advantages' and 'disadvantages' like that of any other students
who is a citizen of India, the participation in the Pre-Medical Entrance
Test or such other Entrance Examination would be on an even keel and
there is no greater advantage to the petitioner No. 1 merely because
she was born in California, USA. Therefore, the right which had been
conferred and existed had not aff ected Indian citizens so as to abruptly
deny all such rights. The right was only to compete. It could have been
regulated for the future, if it is the policy of the Sovereign State. No
thought having gone into all these aspects is crystal clear from the
manner in which it has been done.
55. In the above circumstance, keeping in view, the object with which
the Act, 1955 was amended so as to provide the benefi t to Overseas
Citizen of India and in that context when rights were given to the OCI
cardholders through the notifi cations issued from time to time, based
on which the OCI cardholders had adopted to the same and had done
things so as to position themselves for the future, the right which had
accrued in such process could not have been taken away in the present
manner, which would act as a 'retroactive' notifi cation. Therefore,
though the notifi cation ex-facie does not specify retrospective operation,
since it retroactively destroys the rights which were available, it is to
be ensured that such of those benefi ciaries of the right should not be
aff ected by such notifi cation. Though the rule against retrospective
construction is not applicable to statutes merely because a part of the
requisite for its action is drawn from a time antecedent to its passing,
in the instant case the rights were conferred under the notifi cation
and such rights are being aff ected by subsequent notifi cation, which
is detrimental and the same should be avoided to that extent and be
allowed to operate without such retroactivity.
56. We note that it is not retrospective inasmuch as it does not aff ect
the OCI Cardholders who have participated in the selection process,
have secured a seat and are either undergoing or completed the
MBBS course or such other professional course. However, it will act
as retroactive action to deny the right to persons who had such right
which is not sustainable to that extent. The goal post is shifted when the
game is about to be over. Hence we are of the view that the retroactive
955
operation resulting in retrospective consequences should be set aside
and such adverse consequences is to be avoided.
57. Therefore in the factual background of the issue involved, to sum
up, it will have to be held that though the impugned notifi cation dated
04.03.2021 is based on a policy and in the exercise of the statutory
power of a Sovereign State, the provisions as contained therein shall
apply prospectively only to persons who are born in a foreign country
subsequent to 04.03.2021 i.e. the date of the notifi cation and who
seek for a registration as OCI cardholder from that date since at that
juncture the parents would have a choice to either seek for citizenship
by descent or to continue as a foreigner in the background of the
subsisting policy of the Sovereign State.
58. In light of the above, it is held that the respondent No. 1 in
furtherance of the policy of the Sovereign State has the power to pass
appropriate notifi cations as contemplated under Section 7B(1) of the
Citizenship Act, 1955, to confer or alter the rights as provided for
therein. However, when a conferred right is withdrawn, modifi ed or
altered, the process leading thereto should demonstrate application
of mind, nexus to the object of such withdrawal or modifi cation and
any such decision should be free of arbitrariness. In that background,
the impugned notifi cation dated 04.03.2021 though competent under
Section 7B(1) of Act, 1955 suff ers from the vice of non-application
of mind and despite being prospective, is in fact 'retroactive' taking
away the rights which were conferred also as a matter of policy of
the Sovereign State.
59. Hence, the notifi cation being sustainable prospectively, we hereby
declare that the impugned portion of the notifi cation which provides
for supersession of the notifi cations dated 11.04.2005, 05.01.2007
and 05.01.2009 and the clause 4(ii), its proviso and Explanation (1)
thereto shall operate prospectively in respect of OCI cardholders who
have secured the same subsequent to 04.03.2021.
60. We further hold that the petitioners in all these cases and all other
similarly placed OCI cardholders will be entitled to the rights and
privileges which had been conferred on them earlier to the notifi cation
dated 04.03.2021 and could be availed by them notwithstanding
PALLAVI vs. UNION OF INDIA & ORS.
[S. RAVINDRA BHAT, J.]
956
SUPREME COURT REPORTS
[2023] 11 S.C.R.
the exclusion carved out in the notifi cation dated 04.03.2021. The
participation of the petitioners and similarly placed OCI cardholders
in the selection process and the subsequent action based on the interim
orders passed herein or elsewhere shall stand regularised."
16. It is evident that the ruling held that notifi cation (dated 04.03.2021)
operated arbitrarily because fi rstly it indicated non-application of mind in
not saving accrued rights. The application of proviso to Clause 4 (ii) of the
notifi cation of 04.03.2021 was held to have no nexus with the objects sought
to be achieved. The court also held that those who are born prior to 2005
and residing in India had received their education in India and hadpursued
by having some advantages and disadvantages like other children who
are citizens of India, and could not be denied their right to participate in
NEET examinations or such similar examinations. It was also held that no
additional advantage was granted to such class of people merely because
they were born abroad and importantly, court took note of the amendment
which introduced concession to OCI Card holders. Therefore, the Court
concluded that when the right conferred was withdrawn and altered, in the
process leading to such change, should demonstrate application of mind,
nexus to the object of such withdrawal or modifi cation and any such decision
had to be free of arbitrariness. In the light of this conclusion, the court held
that the notifi cation saved from the vice of non-application of mind and was
in fact retroactive. It was in these circumstances that the Court held that
only those persons who obtained OCI Cards after 04.03.2021 were rendered
ineligible in terms of the notifi cation.
17. In the present case, although the OCI Card relied upon by the
petitioner on 04.08.2022, the fact that she was in fact issued the OCI
registration card fi rst, on 02.11.2015.In such circumstances, the petitioner's
eligibility to claim the benefi t of OCI card holder in terms of the ruling in
Anushka (supra) is undeniable. The rejection of her candidature at this
stage, i.e. on 19.06.2023 is not supportable in law. She is consequently
directed to be considered in remaining counselling rounds by the AIIMS
and all participating institutions for PG Medical seats. It is clarifi ed that the
consideration would be regarding seats that are unfi lled on the date of this
judgment whether reserved for SC/ST/OBC or other categories and such
as specially earmarked for Bhutanese candidates etc. if they can be fi lled
957
by other candidates, like her. Furthermore, this facility should be open to
the petitioner as well as other candidates based upon the available records
of those issued OCI cards prior to 04.03.2021 and who can participate in
such counseling having regard to their performance in the NEET test, and
their ranking.
18. The writ petition is allowed in the above terms and there is no
order as to costs.
Headnotes prepared by:
Writ petition allowed.
Nidhi Jain
PALLAVI vs. UNION OF INDIA & ORS.
[S. RAVINDRA BHAT, J.]