IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 21ST DAY OF NOVEMBER, 2019 BEFORE:
THE HON’BLE MRS. JUSTICE S.SUJATHA WRIT PETITION No.48723/2019 (EDN – AD) BETWEEN:
KUM. VARSHA SIMHA (MINOR REP BY NG Mr. DILEEP SIMHA), R/AT #118, KARIGIRI KRUPA, AECS LAYOUT, II STAGE, RMS 4TH CROSS, SANJAYNAGAR, BANGALROE-560 094. ... PETITIONER [BY SRI D.C.JAGADEESH, ADV.] AND:
1 . THE DIRECTOR NATIONAL INSTITUTE OF FASHION TECHNOLOGY (NIFT), BENGALURU CAMPUS, BANGALORE-560 102.
2 . DIRECTOR GENERAL NATIONAL INSTITUTE OF FASHION TECHNOLOGY, HAUZ KHAS, NEAR GULMOHAR PARK, NEW DELHI-110 016, INDIA 3 . THE UNION OF INDIA MINISTRY OF TEXTILES, UDYOG BHAVAN, NEW DELHI-110 011.
4 . THE UNION OF INDIA MINISTRY OF HUMAN RESOURCE DEVELOPMENT, SHASTRI BHAVAN, NEW DELHI-110 001. …RESPONDENTS [BY SRI KUMAR M.N., CGC.] THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE IMPUGNED ORDER DATED 26.09.2019 VIDE ANNEXURE-D ISSUED BY THE R-1 AND ACTION DATED 08.08.2019 BY THE R-2.
THIS PETITION COMING ON FOR ORDERS, THIS DAY, THE COURT MADE THE FOLLOWING:-
O R D E R Heard the learned counsel for the parties.
2. The petitioner has challenged the order dated 26.09.2019 issued by respondent No.1 whereby the admission of the petitioner to 1st Semester of Batch 2019 to 2023 at NIFT, Bengaluru in B.Des (AD) has been cancelled, inter alia, challenging the communication of the respondent No.2 dated 08.08.2019.
3. It is submitted that the petitioner was born in Canada on 20.10.2001 since the father of the petitioner happens to work at Canada during that time. Both the parents of the petitioner are Indian Citizens and only for the employment purpose they happen to be in Canada for few years. It is the contention of the petitioner that two months after the birth of the petitioner, her parents moved to India and since then they are living in India. The petitioner has schooling from nursery to PUC in India. Owing to the birth of the petitioner in the land of Canada, she was given the citizenship of Canada and upon return to India, the father of the petitioner has applied for OCI Card and the same has been issued by the competent authority. In order to pursue her higher education in the field of designing, the petitioner had applied for the B.Des. Programme course at NIFT in the month of January, 2019.
4. It is submitted that since there was no clarity about the admission of the students with OCI status, either in the admission prospectus – 2019 or in the website of the NIFT, the petitioner’s father had sought for clarification with Ministry of Education, Government of India. The same was referred to Ministry of Textiles to which communication dated 08.08.2019 was made observing that the reservation for NRI/Foreign Nationals/SAARC candidates along with process of admission is categorically mentioned in the Admission Prospectus; since the petitioner is aware, the OCI are at par with NRI in India as per the notification of Ministry of Home Affairs, Government of India, the petitioner should have applied under her correct category with correct information and process. Subsequent to which, the order impugned dated 26.09.2019 has been issued by respondent No.1.
5. Learned counsel for the petitioner would submit that the order impugned suffers from the vice of arbitrariness and is hit by the principles of natural justice. No opportunity of hearing was provided to the petitioner before passing the order impugned herein. It was submitted that there was no clarity in the prospectus of the respondents inasmuch as the OCI students are concerned. Indeed, a clarification was sought for in that regard by the concerned authorities. There was no suppression of any facts as alleged by the respondents to proceed with the cancellation of the seat allotted to the petitioner. Reliance is placed on the co- ordinate bench decision of this Court in the case of Pranav V. Deshpande vs. The State of Karnataka disposed of on 10.04.2019 in support of his submission that the OCI students have to be treated on par with the students applying for the seats under the Government quota. Reference is also made to the Notification of the Central Government dated 05.01.2009 as well as the provisions of the Citizenship (Amendment) Act, 2015.
6. Learned counsel for the respondents justifying the order impugned submitted that the petitioner has suppressed the material fact inasmuch the nationality is concerned in the on-line application form submitted for NIFT admission 2019-20, the nationality was shown as Indian. The admission was allotted considering the nationality as Indian. The OCI students stand on a different footing. The prospectus of the NIFT indeed was clear regarding the admissions to be made for U.G. Course seats for Foreign National/SAARC/NRI and Domicile categories. The selection of eligible candidates of the said category for admission in NIFT will be based on their SAT/GMAT/GRE score, and not on the basis of the Entrance examination. The Notification dated 05.01.2009 is not applicable to the facts of the present case as well as the judgment of co-ordinate bench referred to by the learned counsel for the petitioner.
Thus, the learned counsel seeks for dismissal of the writ petition.
7. Having heard the learned counsel for the parties and perusing the material on record, it is ex- facie apparent that no opportunity of hearing was provided to the petitioner before passing of the order impugned at Annexure – D. It is well settled principle that the affected party has to be heard in the matter before passing any adverse order, more particularly when the cancellation of admission to the seat allotted is to be made. The order impugned at Annexure –D is in flagrant violation of the principles of natural justice. On this ground alone, the writ petition deserves to be allowed setting aside the order impugned.
8. Without going into the merits or demerits of the case, the order dated 26.09.2019 at Annexure – D is quashed. The matter is remanded to respondent No.1 to reconsider the matter after providing an opportunity of hearing to the petitioner. The petitioner shall appear before respondent No.1 on 09.12.2019 without awaiting any notice. Respondent No.1 shall consider the submissions as well as the relevant materials to be placed by the petitioner and a decision shall be taken in accordance with law in an expedite manner. All the rights and contentions of the parties are left open.
The writ petition stands disposed of accordingly.
In view of disposal of the writ petition, I.A.No.1/2019 does not survive for consideration and the same stands disposed of.
Sd/- JUDGE PMR