Facts of the Case

The petitioner, Khalid Ahmed Ghilan Amran, a national of Yemen, initially obtained admission in the M.Tech. (Upstream) Course in Petroleum Engineering at NIMS University, Jaipur, in 2013 and completed the course in 2016. Thereafter, he registered as a research student for pursuing a Ph.D. in Chemical Engineering in 2016.

In 2019, the petitioner came to know through a communication dated 27.02.2019 issued by the State of Rajasthan that the M.Tech. (Upstream) Course in Petroleum Engineering and the Ph.D. in Chemical Engineering were not approved as per Schedule II of the NIMS University Act.

The petitioner had a Student Visa valid up to 11.04.2019. Due to the alleged non-issuance of a bona fide certificate by NIMS University, he filed S.B. Civil Writ Petition No. 6128/2019 seeking issuance of an NOC to enable him to change his institution.

Since his Visa was expiring on 11.04.2019 and no interim protection had been granted, the petitioner approached the Division Bench through D.B. Civil Special Appeal (Writ) No. 630/2019. By order dated 12.04.2019, the Division Bench directed NIMS University to issue a bona fide certificate, directed the FRRO to extend the petitioner’s stay for at least ten days, and required the Union of India to decide the issue of Visa after considering the bona fide certificate in accordance with law.

Thereafter, the petitioner’s Visa was extended from 12.04.2019 to 11.04.2020. Subsequently, NIMS University cancelled his Ph.D. registration and issued an NOC permitting him to pursue a Ph.D. from another University or Institution.

The petitioner then applied for registration in a three-year Ph.D. programme in Mechanical Engineering at Vivekananda Global University, Jaipur, and received an admission letter dated 07.10.2019 asking him to join on 25.10.2019.

Meanwhile, the respondent authorities passed orders dated 03.09.2019 and 04.09.2019 cancelling/curtailing his Research/Stay Visa prematurely and requiring him to apply for an Exit Permit. The petitioner alleged that these actions were arbitrary and were influenced by communications from NIMS University after he had initiated litigation against it.

The petitioner further stated that on 17.10.2019 police were called to the NIMS University campus and he was taken away. He made a representation explaining that he could not immediately fly back to Yemen because he lacked sufficient flight fare and required time to arrange funds and travel.

Aggrieved by the ex parte cancellation of his Student Research Visa and the non-issuance of a fresh Student Research Visa, he filed the present writ petition seeking quashing of the impugned orders and permission to pursue his Ph.D. in India.

Issues Involved

The principal issues before the Rajasthan High Court were:

  1. Whether the respondent authorities acted arbitrarily in prematurely cancelling the petitioner’s Research/Stay Visa through orders dated 03.09.2019 and 04.09.2019.
  2. Whether a foreign student or research scholar has an unfettered right to remain in India for pursuing higher studies merely because a Visa had earlier been extended for a particular period.
  3. Whether the petitioner could claim continuation or fresh issuance of a Research Visa after the maximum permissible period under the Visa Manual had expired.
  4. Whether the earlier Division Bench order dated 12.04.2019 created an enforceable right in favour of the petitioner to remain in India up to 11.04.2020 without subsequent reconsideration by the competent authorities.
  5. Whether the petitioner could seek a writ of mandamus for completing his Ph.D. when his provisional admission at Vivekananda Global University had itself been cancelled.
  6. Whether the absence of any adverse report concerning the petitioner’s conduct or behaviour entitled him to continuation of his stay in India.
  7. Whether the Visa cancellation and Exit Permit proceedings were vitiated by alleged animosity on the part of the petitioner’s previous institution.

Petitioner’s Arguments

The petitioner contended that the impugned orders were arbitrary and had been passed without granting him an opportunity of hearing.

It was argued that once the Division Bench, by order dated 12.04.2019, had directed extension of the petitioner’s stay for at least ten days and the Union of India had thereafter extended his Visa up to 11.04.2020, the authorities had no jurisdiction to cancel the Visa midway. According to the petitioner, such premature cancellation was contrary to the earlier judicial directions.

The petitioner further argued that he was pursuing a Ph.D. and, after changing his institution from NIMS University to Vivekananda Global University, the authorities ought to have permitted him to complete his doctoral course under the applicable Student Visa policy.

It was submitted that his stay in India had never adversely affected any person and that there was no adverse report regarding his conduct or behaviour. Therefore, cancellation of his Visa was alleged to be an arbitrary exercise of power.

The petitioner also contended that once the central FRRO authorities had extended his Visa up to 11.04.2020, objections raised by the local office at Jaipur could not constitute a valid basis for cancellation.

He further relied upon the broader context of international education and cultural relations, arguing that foreign students pursuing education in India should not be subjected to discriminatory or unjustified curtailment of their Visa tenure.

The petitioner relied upon:

  • Louis De Raedt vs Union of India & Ors., (1991) 3 SCC 554
  • Kamil Siedczynski vs Union of India & Ors., (2020) 3 CALLT 235 (HC)

Respondents’ Arguments

The respondents opposed the writ petition and stated that FIR No. 502/2019 had been registered by CID Special Branch, Jaipur, at Police Station Manak Chowk, Jaipur, on 11.11.2019, alleging that the petitioner was residing illegally in India after cancellation of his Visa on 03.09.2019.

The respondents submitted that the petitioner had initially been granted a Student Visa on 15.07.2013, which was later converted into a Research Visa on 16.06.2016.

Reliance was placed upon Clause 61(VII) of the Visa Rules, under which, according to the respondents, change of subject or institution of affiliation in respect of a Research Visa is not normally permitted.

The respondents alleged that the petitioner had misled Vivekananda Global University by representing that his Visa was valid until 11.04.2020, although it had already been cancelled on 03.09.2019 and an Exit Permit had been issued on 04.09.2019.

It was further submitted that an Exit Permit had also been issued on 17.10.2019 following the Court’s direction dated 15.10.2019 to proceed in accordance with law, but the petitioner had allegedly concealed this fact and had not specifically challenged that Exit Permit.

The respondents also placed on record a communication dated 25.11.2019 from Vivekananda Global University stating that the petitioner’s provisional admission had been cancelled because he failed to submit the required documents within the stipulated period.

The respondents relied upon:

  • Hans Muller of Nurenburg vs Superintendent, Presidency Jail, Calcutta & Ors., AIR 1955 SC 367
  • Ezzaldeen Abdul Salam Abduljalil Saleh vs Union of India & Ors., S.B. Criminal Writ Petition No. 147/2017, order dated 09.11.2017

Court Order / Findings

The Rajasthan High Court examined the petitioner’s Visa history and found that he had initially been issued a Student Visa for pursuing M.Tech. in Petroleum Engineering at NIMS University. That Visa was later converted into a Research Visa for pursuing a Ph.D. in Chemical Engineering and was extended from time to time.

The Court held that the entry and stay of a foreign national for pursuing studies in India are governed by the applicable Visa Rules and the Visa Manual framed by the Union of India.

The Court specifically examined Clause 15.2(i) of the Visa Manual, which provides that a Student Visa may be granted for a maximum period of five years or for the duration of the academic course, whichever is less, and in any event the validity shall not exceed five years.

The Court further considered Clause 15.10 relating to Research Scholars. Under Clause 15.10(vii), an S-5 Research Visa may be granted for three years or for the duration of the research project, whichever is earlier.

Under Clause 15.10(viii), FRROs/FROs are competent to extend an S-5 Visa subject to production of:

  • a valid S-5 Visa;
  • a bona fide certificate from the University/Institution of affiliation confirming pursuit and duration of the research project; and
  • evidence of financial resources.

The Court noted that the total Visa period may be restricted to the duration of the approved research project or five years, whichever is less. A final extension of not more than six months may also be granted after completion of the project to enable completion of final formalities.

The Court further observed that the Note appended to Clause 15.10(viii) permits the concerned FRRO, in rare and exceptional cases, to grant extension beyond five-and-a-half years on a six-monthly basis for a maximum further period of two years, on the merits of each case and subject to usual checks.

On the facts, the Court found that the petitioner’s admission in Vivekananda Global University had itself been cancelled by communication dated 25.11.2019. Consequently, as on the date of adjudication, the petitioner had no subsisting admission in that University.

The Court rejected the argument that curtailment of the Visa, earlier stated to be valid up to 11.04.2020, entitled the petitioner to a Research Visa. The Court held that the maximum permissible period reckoned from the petitioner’s Research Visa/Ph.D. phase beginning in 2016 had already expired in 2021.

The Court further held that the right to remain in India as a student is not an unfettered right. Such stay must be governed by Indian law. Where the foreign national has no proof of current admission in an institution for pursuing a Ph.D. and the prescribed outer limit for stay has expired, no enforceable right can be claimed to continue staying in India.

The Court also rejected the allegation that the entire deportation/Exit Visa process was merely the result of animosity by the previous institution. It observed that after completing his Master’s degree in 2016, the petitioner took approximately three years to obtain admission to another Ph.D. programme, and that admission was subsequently cancelled.

Regarding the earlier Division Bench order, the Court clarified that the Division Bench had directed the authorities to extend the petitioner’s stay for ten days and thereafter take a decision concerning issuance of Visa. The earlier order did not confer an unconditional or perpetual right to remain in India.

The Court acknowledged the importance of international relations, academic exchanges and foreign students pursuing higher studies across countries. However, it held that the duration of stay in a host country must be regulated by the laws of that country.

The Court concluded that an unfettered right claimed by a foreign student to remain in a country for pursuing different courses without a valid Visa cannot be accepted, as doing so would interfere with the policy framework of the host country governing admission and stay of foreign nationals.

Ultimately, the Court found no arbitrariness in the actions of the respondents and held that the mandamus sought by the petitioner to permit completion of the Ph.D. course could not be granted because the outer limit prescribed under the Visa Manual had already expired.

Final Order

The writ petition was dismissed. No order as to costs.

Important Clarification

The judgment makes an important distinction between the academic aspiration of a foreign national and a legally enforceable right to remain in India.

A foreign student’s admission to a course, previous possession of a Student Visa, earlier extension of stay, absence of an adverse conduct report, or desire to continue higher education does not by itself create an unfettered or perpetual right to stay in India.

The continuation of stay is subject to:

  • validity and conditions of the Visa;
  • applicable Visa Rules and Visa Manual;
  • existence of genuine and subsisting admission;
  • duration of the academic or research programme;
  • prescribed maximum Visa period;
  • production of a bona fide certificate;
  • evidence of financial resources;
  • satisfaction of the competent immigration authorities; and
  • other statutory and policy requirements.

The Court also clarified that international educational exchange is undoubtedly valuable, but the host country retains authority to regulate the entry, duration of stay and continued residence of foreign nationals through its own laws and Visa policy.

Sections / Legal Provisions / Visa Clauses Involved

1. Clause 15.2(i) of the Visa Manual – Validity of Student Visa
Student Visa may be granted for a maximum period of five years or for the duration of the academic course, whichever is less. The validity of the Student Visa shall not exceed five years.

2. Clause 15.10(vii) of the Visa Manual – Research Scholar / S-5 Visa
Research Visa may be granted for three years or for the duration of the research project, whichever is earlier.

3. Clause 15.10(viii) of the Visa Manual – Extension of S-5 Research Visa
FRRO/FRO may extend the Research Visa subject to a valid S-5 Visa, bona fide certificate from the affiliated University/Institution regarding the research project and its duration, and evidence of financial resources.

4. Note appended to Clause 15.10(viii)
In rare and exceptional cases, the concerned FRRO may grant extension beyond five-and-a-half years on a six-monthly basis for a maximum period of two years, based on the merits of each case and subject to usual checks.

5. Clause 61(VII) of the Visa Rules
Relied upon by the respondents for the proposition that change of subject or institution of affiliation in relation to a Research Visa is not normally allowed.

6. Article 226 of the Constitution of India
Relevant to the writ jurisdiction invoked for challenging administrative action and seeking a writ of mandamus.

Link to download the order -https://mytaxexpert.co.in/uploads/1783498719_1445compressed.pdf

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