PALLAVIversusUNION OF INDIA & ORS.

                 [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 first 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 offered PG in Paediatrics in
AIIMS – However, just before the first 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 Notification, 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 benefit of OCI card holder
cannot be denied – Rejection of her candidature not supported in law
– Notification 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 notification 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the objects sought to be achieved – When the right conferred was withdrawn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 modification
                                      943
944          SUPREME COURT REPORTS                        [2023] 11 S.C.R.


and any such decision had to be free of arbitrariness – Notification 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 notification
– 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
            PALLAVI vs. UNION OF INDIA & ORS.                             945
                 [S. RAVINDRA BHAT, J.]

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 certificate 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 Certificate was also deemed essential. This was
to be issued by the Ministry of External Affairs, 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
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 official 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 qualified list
of candidates published on 13.05.2023.
      5. The communication dated 25.05.20231 provided information for the
first 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.
              PALLAVI vs. UNION OF INDIA & ORS.                                        947
                   [S. RAVINDRA BHAT, J.]

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 first 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 effect on
19.06.2023 itself.
      7. As the first-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 first 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 notification
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 Affairs Notification 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.
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 notification 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 notification 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 effect could not be given to that
notification 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 notification 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 benefits abruptly.
It was emphasized that the Court, therefore, declared that the operation of
notification which provided for supersession of earlier notifications 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 notification dated
04.03.2021 and submitted that this Court in Anushka(supra) clearly held
that it had prospective effect. This meant that for all subsequent years i.e.,
after 2021-22, the notification was applicable. It was contended that in any
event since the petitioner was born much prior to 04.03.2021, the application
of the notification (04.03.2021) operated with effect from the date of the
judgment i.e., 03.02.2023.
     12. AIIMS finds 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.
            PALLAVI vs. UNION OF INDIA & ORS.                            949
                 [S. RAVINDRA BHAT, J.]

     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 notifications 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 notifications 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 notification 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 notification of the Government of India in the
     Ministry of Home Affairs published in the Official Gazette vide
     number S.O. 542(E), dated the 11th April, 2005 and the notifications
     of the Government of India in the erstwhile Ministry of Overseas
     Indian Affairs published in the Official 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 specifies
     the following rights to which an Overseas Citizen of India Cardholder
     (hereinafter referred to as the OCI cardholder) shall be entitled, with
     effect from the date of publication of this notification in the Official
     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;
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 offered PG in Paediatrics in AIIMS and just before the
first 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 notification 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 notification, 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 notifications all these notifications were
somewhat softened by of the retroactive application facially was that all
OCI Card holders who had planned their academic careers based upon pre-
existing notifications 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 notification 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
      notification ex facie may not specify retrospective application, the effect
      of superseding the earlier notifications and the proviso introduced to
      clause 4(ii) would make the impugned notification 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.
       PALLAVI vs. UNION OF INDIA & ORS.                            951
            [S. RAVINDRA BHAT, J.]

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 notification
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 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. 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 notification 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 notification, 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
filed 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 benefit that had
been extended to the petitioners and the similarly placed petitioners
under the notifications 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
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 benefit was extended. If in
      that light, the details of the first 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 notification 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
       PALLAVI vs. UNION OF INDIA & ORS.                            953
            [S. RAVINDRA BHAT, J.]

benefit 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 notification
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 benefit of the entire education
course from pre-school stage pursued by her in India and the benefit
for appearing for the Pre-Medical Test which was available to her will
be erased in one stroke. Neither would she get any special benefit 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 notification
issued under Section 7B(1) of Act, 1955 and all ‘things were done’ by
such Overseas Citizens of India to take benefit of it and when it was the
stage of maturing into the benefit of competing for the seat, all ‘such
things done’ should not have been undone and nullified with the issue
of the impugned notification by superseding the earlier notifications
so as to take away even the benefit that was held out to them.
54. Therefore, on the face of it the impugned notification 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 notification was issued even without saving the rights and
excluding the petitioners and similarly placed OCI Cardholders with
the other students is to be classified 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
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 affected 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 benefit to Overseas
      Citizen of India and in that context when rights were given to the OCI
      cardholders through the notifications 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’ notification. Therefore,
      though the notification 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 beneficiaries of the right should not be
      affected by such notification. 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 notification
      and such rights are being affected by subsequent notification, 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 affect
      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
       PALLAVI vs. UNION OF INDIA & ORS.                            955
            [S. RAVINDRA BHAT, J.]

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 notification 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 notification 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 notifications 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, modified or
altered, the process leading thereto should demonstrate application
of mind, nexus to the object of such withdrawal or modification and
any such decision should be free of arbitrariness. In that background,
the impugned notification dated 04.03.2021 though competent under
Section 7B(1) of Act, 1955 suffers 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 notification being sustainable prospectively, we hereby
declare that the impugned portion of the notification which provides
for supersession of the notifications 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 notification
dated 04.03.2021 and could be availed by them notwithstanding
956           SUPREME COURT REPORTS                          [2023] 11 S.C.R.


      the exclusion carved out in the notification 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 notification (dated 04.03.2021)
operated arbitrarily because firstly it indicated non-application of mind in
not saving accrued rights. The application of proviso to Clause 4 (ii) of the
notification 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 modification and any such decision
had to be free of arbitrariness. In the light of this conclusion, the court held
that the notification 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 notification.
      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 first, on 02.11.2015.In such circumstances, the petitioner’s
eligibility to claim the benefit 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 clarified that the
consideration would be regarding seats that are unfilled 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 filled
              PALLAVI vs. UNION OF INDIA & ORS.                           957
                   [S. RAVINDRA BHAT, J.]

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