s 1 WP 1648 of 2010 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO.1648 of 2010 WITH CHAMBER SUMMONS NO.334 OF 2010 Stelmakh Leonid Iuliia, Residing at KV.Yuzhniy, 6a/44, Lugansk,Ukraine Petitioner versus 1. Secretary to the Ministry of External Affairs, Government of India, having their office at 2nd Floor, Aaykar Bhavan, Mumbai-20. 2. Union of India Having office at 2nd Aaykar Bhavan, Mumbai-20 Respondents Mr.S.Malik i/b Mr.P.R.Vchil for the petitioner Dr.G.R.Sharma, Special Counsel with Mr.Ashok Varma for respondents. CORAM: P.B.MAJMUDAR& MRS.MRIDULA BHATKAR,JJ. DATE: 25th NOVEMBER,2010. ORAL JUDGMENT : ( PER P.B.MAJMUDAR, J. ) : - . This petition is already admitted in which Chamber Summons is circulated for amending the petition on the basis of some subsequent events. The petitioner has filed this petition through her constituted attorney challenging the decision of Embassy of India, by which the s 2 WP 1648 of 2010 petitioner has been denied the employment visa, which she has applied for employment in India. The learned counsel for the Union of India has objected that such amendment is not permissible and hence the Writ Petition is not maintainable. With the consent of the parties the Writ Petition and the Chamber Summons both are taken for final hearing today. 2. The petitioner is a citizen of Ukraine. She applied for employment visa on 3/6/2010 before the Indian Embassy in Kyiv Ukraine. She was promised employment as an Analyst by JP Morgan Services India Pvt.Ltd., Mumbai. In order to join the employment she was required to have Indian Visa. She applied for the same. The said application was rejected by the Indian Embassy on 28th July, 2010 informing her that as per the existing guidelines of the Government for issuance of Employment Visa, her application is required to be rejected. It is required to be noted that the above petition was filed on 24-06-2010 i.e. before the communication about rejection of visa of the petitioner. In the petition, the prayer is regarding issuance of directions in the nature of Mandamus directing the respondents to issue employment visa to the petitioner. It is the case of the petitioner that at the time when the petitioner applied for Visa, she was orally told by the Embassy that since the minimum income criterion fixed by the Government is $ 25000 per year at the place where a s 3 WP 1648 of 2010 person is employed and a person is going to draw a salary is less than the prescribed amount, she cannot be given employment visa. Subsequently, since the petitioner has been communicated about the rejection of her visa, Chamber Summons is filed for amending the petition on the ground that this criterion of income should not be made applicable to the petitioner. 3. Learned counsel for the petitioner vehemently submitted that undoubtedly the rejection order is passed at Ukraine , but since the petitioner cannot file any proceeding at Ukraine challenging the decision against Indian Embassy in that country, the petition is filed in the Indian Court and since the employment is assured to the petitioner by J.P.Morgan Services Pvt.Ltd., which is located at Mumbai the petition is filed before this Court. Learned counsel for the petitioner submits that at the time when the petitioner applied for visa on 3/6/2010 the criterion of income of $ 25,000 per annum was applicable. In between it was changed and subsequently it was decided to give go-by to the income criterion altogether. He has relied upon the newspaper report in Times Nation dated 8th July, 2010. Basing his argument on the said report it is submitted that the Government of India at the relevant time i.e. before the rejection of the petitioner’s application had taken the decision to change the rule s 4 WP 1648 of 2010 and removed the income criteria. The learned counsel submits that at the time when the application of the petitioner was rejected the income criterion was not in force and that now again it has been reintroduced somewhere on 7th August, 2010. The learned counsel for the petitioner submits that in any case fixing such minimum salary criterion for the foreigners for getting employment is arbitrary. 4. On behalf of Union of India, it is submitted that as per the policy framed by the Government of India, the petitioner is not entitled to get employment Visa. It is also submitted that as per the existing policy, employment in India can be given to those foreigners, who are having specialized education in a particular field and who can be appointed on a Special Post and Indian citizens are not available for appointment on such post. Learned counsel for Union of India, has placed on record the policy framed by the Government in this behalf. Learned counsel for the Union of India submits that since many Analysts are available in India, the petitioner is not entitled to get employment visa for the purpose of serving as an Analyst in India. Learned counsel for respondent Union of India submits that now as per the policy prevailing, a person seeking employment in India who is a foreign national is required to show that his/her minimum yearly salary is $ 25000. But even otherwise since as per the policy the petitioner cannot be said to be highly qualified person ,and s 5 WP 1648 of 2010 on that ground her visa application was not found in consonance with the guidelines. It is submitted that many analysts are available in India who can discharge their services. 5. We have heard the learned counsel at length. We have also gone through the petition and annextures with the same as well as the Chamber Summons which is also placed for hearing with the petition. 6. It is required to be noted that the petitioner is not a citizen of India and she had applied for employment visa by applying to the Indian Embassy at Kyiv Ukraine. Her application was rejected by the Indian Embassy on 28th July,2010. It is no doubt true that a decision for rejecting her Visa is taken by the Indian Embassy on the basis of the policy framed by the External Ministry and since the place of employment where the petitioner seek employment is in Bombay, this Court can be said to have territorial jurisdiction to decide the issue in question. However, the real question which requires consideration is as to whether such type of petition is maintainable at the instance of a foreign national and whether the issue in question can be said to be justiciable issue. 7. It is pertinent to note that so far as foreign nationals are concerned, all the fundamental rights enshrined in the Constitution of s 6 WP 1648 of 2010 India are not available to them, except Articles 21 and 14 of the Constitution of India. In our view, it is not a fundamental right of a foreign national to get employment Visa in India. If the Visa is rejected on the basis of policy framed by the Government of India, this Court cannot sit in appeal over such decision in order to find out as to whether Visa application should have been granted or not. In our view, asking for Visa by a foreign national cannot be said to be a justiciable issue and this Court cannot issue any writ under Article 226 of the Constitution of India in connection with the availability of fundamental rights where a foreign citizen is concerned. 8. The Supreme Court in the case of Chairman,Railway Board and others Vs. Mrs. Chandrima Das and others ,AIR 2000 Supreme Court,988 has considered the said aspect. In the aforesaid case, a Bangladeshi woman was subjected to rape by an accused in India. A writ petition was filed by a Practicing Advocate under Article 226 of the Constitution of India, for paying compensation to the victim. The Supreme Court has considered the applicability of Articles 21 and 14 of the Constitution of India in such a cases. It is observed that : 29.The Fundamental Rights are available to all the “Citizens” of the country but a few of them are also available to “persons”.While Art.14, which guarantees equality before law or the equal protection of laws within the territory of India, is applicable to “person” which would s 7 WP 1648 of 2010 also include the “citizen” of the country and “non-citizen” both. Art.15 speaks only of “citizen” and it is specifically provided therein that there shall be no discrimination against any “citizen” on the ground only of religion, race,caste,sex,place of birth or any of them nor shall any citizen be subjected to any disability ,liability,restriction or condition with regard to access to shops, public restaurants,hostel and places of public entertainment, or the use of wells,tanks, bathing ghats, roads and place of public resort on the aforesaid grounds. Fundamental Rights guaranteed under Art.15 is,therefore, restricted to “citizen”. So also, Art.16 which guarantees equality of opportunity in matters of public employment is applicable only to “citizens” . The Fundamental Rights contained in Art. 19 ,which contains the right to “Basic Freedoms”, namely, freedom of speech and expression; freedom to assemble peaceably and without arms; freedom to form associations or unions; freedom to move freely throughout the territory of India; freedom to reside and settle in any part of the territory of India and freedom to practice any profession, or to carry on an occupation,trade or business, are available only to “citizens” of the country. “30. The word “citizen”in Art.19 has not been used in a sense different from that in which it has been used in Part II of the Constitution dealing with “citizenship”(See State trading Corporation of India Ltd.V. Commercial Tax Officer, AIR 1963 SC 1811 :1964(4) SC R 99). It has also been held in this case that the words “all citizens” have been deliberately used to keep out all “non-citizens” which would include “aliens”. It was laid down in Hans Muller of Nurenburg V.Superintendent ,Presidency Jail Calcutta,AIR 1955 SC 367 (374): 1955 (1)SCR 1284 , that this Article applies only to “citizens”. In another decision in Anwar V.State of J.& K.AIR 1971 SC 337 : 1971(1)SCR 637 :(1971) 3 SCC 104 ,it was held that non-citizen could not claim Fundamental Rights under Art.19. In Naziranbai V.State,AIR 1957 Madh Bha 1 and Lakshim Prasad V.Shiv Pal,AIR 1974 All 313, it was held that Art.19 does not apply to a “foreigner”.TheCalcutta High Court in Sk.Mohamed s 8 WP 1648 of 2010 Soleman V.State of West Bengal,AIR 1965 Cal.313,held that Art.19 does not apply to a Commonwealth citizen. “32. Article 20 guarantees right to protection in respect of conviction for offences. Article 21 guarantees right to life and personal liberty while Art.22 guarantees right to protection against arbitrary arrest and detention. These are wholly in consonance with Art.3 Art.7 and Art.9 of the Universal Declaration of Human Rights,1948. 9 So far as right to get visa is concerned, in our view, it is not a fundamental right of a foreign national and, therefore, the petition under Article 226 of the Constitution of India, violating such right is not maintainable. So far as Article 14 and Article 16 are concerned, Article 16 relates to equality in the matter of public employment and non-citizen cannot invoke Article 16 in any manner as the said Article is only applicable to the citizens of the country. It cannot be said that there is violation of Article 21 of the Constitution in the present case, nor any such argument is canvassed before this Court. Considering the said aspect, in our view, this petition cannot be entertained which challenges the decision of Indian Embassy rejecting employment visa to the petitioner. It is not for this Court to find out whether such restriction in the matter of granting Visa to a Foreigner is proper or not. 10. So far as the argument of the learned counsel for the petitioner that at the relevant time when the application was rejected the income s 9 WP 1648 of 2010 criterion was given a go-by is concerned, it is not in dispute that at the time when the petitioner applied for Visa, the said income criterion was applicable. It is also not in dispute that the petitioner has not fulfilled minimum income criterion prescribed for getting the employment Visa. Even assuming that for the time being, the said policy was given a go-by, it is not in dispute that at the time when the petitioner applied for employment Visa, the said income criterion was in existence. There is nothing on record to show that when the application was rejected income criterion was totally taken away. But even otherwise the application is rejected on the ground that as per the policy framed by the government, the employment Visa cannot be granted for the jobs for which qualified Indians are available. In the instant case, it is pointed out that for the post in question, so many Indians are available. It is also pointed out that employment Visa cannot be granted for routine , ordinary or secretarial/clerical jobs. 11. Learned counsel for the Union of India submits that the petitioner has applied for the post of Analyst which is not in dispute and there are so many Indian employees available for the said job .It cannot be said that for such a post qualified Indians are not available. In our view what should be the guidelines for giving visa is a matter which is solely in the discretion of the Government of India in its department of External s 10 WP 1648 of 2010 Affairs. This Court cannot decide the issue as to what policy should be framed for granting employment visa or other visa. This Court cannot lay down any criterion in this behalf in any manner. Similarly this Court is not expected to decide as to whether the visa application should be allowed or not. Rejection of visa by the Consulate is not an issue which is justiciable one. If the Government of India in its wisdom has taken a decision by prescribing certain criterion this Court cannot take a judicial review in such a matter. It is always open to the State to restrict the entries of foreign nationals by imposing restrictions by framing certain policy and the said policy decision should not be interfered. As pointed out earlier only few fundamental rights like Article 21 of the Constitution are available to the foreign nationals and Article 16 cannot be said to be applicable to the foreign nationals for getting public employment in this country. In our view, in the instant case, no relief can be granted to the petitioner in view of what is stated hereinabove. It cannot be said that there is a violation of Article 21 in the present case. The petitioner has no right to approach this Court and it cannot be said that income criterion prescribed by the Government of India is arbitrary in any manner, which issue cannot be decided at the instance of the petitioner, who is not an Indian citizen. We accordingly do not find any substance in the petition. Hence the petition is dismissed. Rule discharged. No order as to costs. s 11 WP 1648 of 2010 12 In view of the dismissal of the petition, the Chamber Summons does not survive and it is disposed of accordingly. ( MRS.MRIDULA BHATKAR, J. ) ( P.B.MAJMUDAR, J. )