V.G. Arun, J.

1. The 1st petitioner is a Self-financing Ayurveda Medical College. Petitioners 2 and 3 are students admitted to the 2017- 18 BAMS Course in the 1st petitioner College to the 15% seats reserved for Non-Resident Indian (NRI) students. The 1st respondent Admission Supervisory Committee for Professional Colleges ('the Committee' for short) had called upon all Selffinancing Ayurveda, Unani and Siddha Medical Colleges in the State to submit the list of admitted candidates with supporting documents, to establish their right of claim for admission to the BAMS/BUMS/BSMS course, 2017-18, maintaining merit, transparency and academic excellence. Accordingly, the 1st petitioner submitted the list of students along with relevant documents. As per Ext.P3 communication, the Committee approved the admission of all students, except petitioners 2 and 3. The admission of petitioners 2 and 3 under NRI quota was withheld for the reason that they had not produced the employment details/embassy certificate/visa copy of the sponsor, for establishing their right of claim for admission. Thereupon, petitioners 2 and 3 furnished certain documents which, according to them, would satisfy the requirements mentioned in Ext.P3. By Ext.P13 communication, the Committee directed production of the originals of the employment certificates in respect of Aswathy Dileep, the sponsor of the 3rd petitioner, and Aksar Ali Vaisisar, the sponsor of the 2nd petitioner. The Principal of the 1st petitioner College submitted Ext.P14 reply pointing out that the 3rd petitioner had informed that her sponsor had lost the original employment certificate and the 2nd petitioner had requested for few more days’ time to submit the original. Later, the original employment certificate of the 2nd petitioner's sponsor was produced.

2. The writ petition was filed on publication of Ext.P16 notification by the 2nd respondent University, announcing the examination time table for the first year BAMS course. The prayers in the writ petition are as follows:-

“i) to declare that the petitioners 2 and 3 are legally entitled to get their admissions under the NRI quota approved in view of Exts P4 to P12 and the non-approval of the same as per Ext.P3 is legally unsustainable and the same is to be quashed to the extent it relates to the non-approval of the admission of petitioners 2 and 3 and further declare that the 1 respondent is legally liable to approve the admission of the petitioners 2 and 3 and the 2nd respondent liable to permit the petitioners 2 and 3 to register as per Ext.P16;

ii) issue a writ of certiorari or any other appropriate writ, order or direction calling for the records leading to Ext. P3 and quash the same to the extent it relates to the non-approval of the admission of petitioners 2 and 3 in the NRI quota;

iii) issue a writ of mandamus or any other appropriate writ, order or direction commanding and compelling the 1st respondent to grant approval to the admission of the petitioners 2 and 3 in the NRI quota for BAMS Course in the 1 petitioner college;

iv) issue a writ of mandamus or any other appropriate writ, order or direction commanding and compelling the 2nd respondent to permit the petitioners 2 and 3 to register as per Ext.P16.”

3. This Court, by interim order dated 01.10.2018, directed the 2nd respondent to grant registration to petitioners 2 and 3 provisionally for the BAMS degree course for the year 2017-18 subject to the condition that they shall satisfy the first respondent as to the genuineness of their certificates and obtain approval from the said authority, as expeditiously as possible, and at any rate, within a period of one month from the date of receipt of the copy of the order.

4. In the statement filed on behalf of the Committee, it is stated that admission of petitioners 2 and 3 was withheld because they had failed to produce the employment details/embassy certificate/visa copy of their sponsors for establishing their claim for admission under NRI quota. Even after Ext.P3, the 1st petitioner had, as per communication dated 27.7.2018, submitted just the employment certificate of the sponsors of petitioners 2 and 3. On verification of the employment certificates, the Committee doubted its genuineness and therefore, Ext.P13 communication was issued directing the 1st petitioner to submit the original of the employment certificates. The 1st petitioner later produced two documents claiming them to be the original employment certificates of the 3rd petitioner's sponsor. According to the Committee, the authenticity of the certificate was still doubtful and the admission of the 3rd petitioner could not be approved based on the said document. As far as the 2nd petitioner is concerned, the Committee was informed that the sponsor had lost the original employment certificate and as such the 2nd petitioner's admission also could not be approved.

5. After the writ petition was taken up for consideration on more than one occasion and adjourned at the request of the the learned counsel for the petitioners, a not pressed memo was submitted seeking permission to withdraw the writ petition and approach the Committee for passing final orders. Considering the fact that further delay in finalising the admission of petitioners 2 and 3 would cause substantial prejudice to them and having come across another important aspect, which is dealt with hereunder, we were not inclined to allow withdrawal of the writ petition; keeping the issue at large and the students in anticipation.

6. Apart from the genuineness or acceptability of the documents submitted by petitioners 2 and 3 in support of their claim for admission under the NRI quota, a larger question as to whether the petitioners fall within the definition of 'NRI students eligible for admission to the 15% NRI quota' arises for consideration. Section 2(o) of the Kerala Professional Colleges or Institutions (Prohibition of Capitation Fee, Regulation of Admission, Fixation of Non-exploitative Fee and Other Measures to Ensure Equity and Excellence in Professional Education) Act, 2006 ('the Act' for brevity) defines Non-Resident Indian Seats as seats reserved for children or wards or dependants of Non-resident Indian, to whom admission is given by the management in a fair, transparent and non-exploitative manner on the basis of fees as may be prescribed. The Act itself was enacted in the backdrop of the judgments of the Apex Court in TMA Pai Foundation v. State of Karnataka [(2002) 8 SCC 481], Islamic Academy of Education v. State of Karnataka [AIR 2003 SC 3724] and P.A.Inamdar v. State of Maharashtra [(2005) 6 SCC 537]. In P.A.Inamdar the Apex Court, discussed, deliberated and suggested the extent of seats that can be earmarked for Non-resident Indian students and the categories to which the admission can be offered. The reasoning of the Apex Court contained at paragraph 131 of the judgment reads thus:-

“131. Here itself we are inclined to deal with the question as to seats allocated for Non-Resident 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 the 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 the 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 cultural ethos by virtue of being here. They also wish the money which they would be spending elsewhere on education of their children should rather reach their own motherland. A limited reservation of such seats, not exceeding 15%, in our opinion, may be made available to NRIs depending on the discretion of the management subject to two conditions. First, such seats should be utilised bona fide by NRIs only and for their children or wards. Secondly, within this quota, merit should not be given a complete go-by. The amount of money, in whatever form collected from such NRIs, should be utilised for benefiting students such as from economically weaker sections of the society, whom, on well-defined criteria, the educational institution may admit on subsidised payment of their fee. To prevent misutilisation of such quota or any malpractice referable to NRI quota seats, suitable legislation or regulation needs to be framed. So long as the State does not do it, it will be for the Committees constituted pursuant to the direction in Islamic Academy to regulate.”

7. Thus, a limited reservation of seats, not exceeding 15% was permitted to be made available to NRIs subject to two conditions:-

(i) Such seat should be utilised bonafide by NRIs only and for their children or wards.

(ii) Within the NRI quota, merit should not be given a complete go-by.

8. The reason which prompted the Apex Court to permit reservation of 15% of seats for NRIs is also discernible from the above passage, viz; to provide people of Indian origin, who have migrated to other countries and are desirous of bringing their children back to their own country, so that the children not only get education, but also get reunited with the Indian cultural ethos. It was also made clear that the amount of money, in whatever form collected from such NRIs, should be utilised for benefiting students such as from economically weaker sections of the society, whom, on well-defined criteria, the educational institution may admit on subsidised payment of fee. The Act of 2006 having been legislated in terms of the directions in P.A. Inamdar, the addition of the term 'dependant' along with 'children and wards', is in fact a legislative excess. Therefore, under no circumstance can an expansive meaning be given to the term 'dependant' incorporated in Section 2(o) of the Act.

9. Since the term 'dependant' incorporated in Section 2(o) of the Act was not defined, a Division Bench of this Court by its judgment in W.P.(C) No.10708 of 2012 dated 18.12.2012, directed the Government of Kerala to look into the issue relating to the meaning of the term 'dependant' under Section 2(o) of the Act, so as to bring about clarity to the term. In compliance of the direction, the Government of Kerala issued G.O(MS) No.34/2013/H&FWD dated 5.2.2013. That Government order was modified by G.O.(MS) No.193/2013/ H&FWD dated 22.5.2013 and again by G.O(MS) No.243/2015/H&FWD dated 6.8.2015, produced as Ext.P2 in the writ petition. Under Ext.P2 Government order, the term 'dependant' in Section 2(o) of the Act in respect of Undergraduate and Post Graduate Medical and Dental Admissions is defined as follows: -

“An applicant who depends upon his/her Father/Mother/Brothers and Sisters (inclusive of first cousin)/Husband/Wife/Brothers and Sisters (inclusive of first cousin) of Father/Mother/Half-brother/Half-sister/Adopted Father or Adopted Mother working abroad.”

10. The sponsor of the 2nd petitioner, Askar Ali Vaisisar is the brother of the 2nd petitioner's mother and therefore, a person included among the relatives in the notification. The sponsor of the 3rd petitioner, Aswathy Dileep, is the daughter of the 3rd petitioner's father's brother (cousin) and hence, a relative as mentioned in the notification.

11. Even if the sponsors are relatives, the students would become entitled for NRI seat only if he/she is a dependant of the sponsor. Exts.P6 and P11 certificates issued by the Village officers does not make any mention about the students being dependants of their sponsors. The Committee, after considering Ext.P2 G.O and various judgments of the High Court including the judgment in W.P.(C) No.14708 of 2012, issued clarificatory directions with respect to the documents to be submitted by a candidate seeking admission to NRI seats. One of the requirements under the said clarification is that the candidate must prove that he/she is the dependant of the sponsor. Petitioners 2 and 3 have not taken any effort to prove that they are dependants of their sponsors and no such case is projected even in the writ petition.

12. In Black's Law Dictionary, the meaning of “dependence” is given as 'a state of looking to another for support, maintenance, food and clothing, comfort and protection of a home and care'. “Dependency” means a relation between two persons, where one is sustained by another or looks for or relies on, aid of another for support or reasonable necessaries consistent with dependants’ position in life and “dependant” means one who derives support from another, or is sustained by another or relies on another for support or favour. Hence, unless and until the candidate is dependent on the sponsor, he/she will not be entitled for admission to NRI seat. It is for the candidate to establish such dependency. Unless this requirement is strictly complied with, NRI seats would be a haven for the rich to procure admission for their children and wards by the mere production of a sponsorship certificate.

13. Petitioners having failed to prove that they are dependants, were not eligible to be admitted to the NRI seat. Hence, even if the petitioners produce the requisite documents of the sponsors, they cannot continue their studies as NRI students.

In the result, the writ petition is dismissed. No order as to costs.