Can non-citizen file writ petition against state? Madras High Court quashes Sri Lankan refugee’s termination by SBI

“So long as the impugned action affects or infringes the rights guaranteed under Articles 14 and 21 of the Constitution of India, a noncitizen, including a refugee, is entitled to seek redressal under Article 226 of the Constitution of India,” the order read.

Background

• It was submitted that the petitioner had entered India in 1990 at the age of five due to ethnic conflict in Sri Lanka and has since been a registered Sri Lankan Tamil refugee residing in Tamil Nadu.
• She was appointed by SBI after being found suitable and continued in service for several years.
• However, during the process of permanent absorption, the bank scrutinised her documents and concluded that she was a Sri Lankan national and not eligible under the recruitment notification, which prescribed Indian citizenship as a condition.
• Her services were consequently terminated in June 2013.

Findings

• While certain rights, particularly those under Articles 16 and 19, are expressly available only to citizens, other fundamental rights such as the right to equality, protection from exploitation, freedom of religion, culture and educational rights are guaranteed to “all persons” and not merely to citizens.
• The Apex Court unequivocally recognised that a foreigner is entitled to challenge the State action which adversely affects his life or personal liberty, subject only to procedure established by law.
• A non-citizen cannot invoke writ jurisdiction of this court for enforcement of fundamental rights guaranteed exclusively to citizens under Articles 15, 16 and 19 of the Constitution.
• However, where the State action is alleged to be arbitrary, unreasonable discriminatory and results in violation of the rights guaranteed under Articles 14 and/or 21 of the Constitution, a non-citizen is entitled to invoke the writ jurisdiction of this court.
• Though the petitioner is admittedly a noncitizen, she has challenged the action of the respondent bank terminating her services solely on the ground that she is not a citizen of this Country, contending that such action is arbitrary and discriminatory and violative of Article 14 of the Constitution.
• The petitioner has been conferred with a lawful right of residence in India. The rehabilitation scheme formulated for Sri Lankan Tamil refugees also extends benefits such as shelter, education and employment in India, particularly in Tamil Nadu.
• It is true that the appointment notification issued by the respondent bank stipulated that the applications were invited only from Indian citizens. However in the application submitted by the petitioner, she had clearly disclosed that her place of birth was Columbo, Sri Lanka.
• Significantly, the application form did not contain any specific column requiring disclosure of citizenship or nationality.
• In the absence of such a column, no adverse inference can be drawn against the petitioner for non-disclosure of her nationality or citizenship.
• She cannot be terminated from service at this stage in the absence of any statutory provision or service regulation expressly prohibiting the appointment of non-citizens to the post in the respondent Bank more particularly in peculiar facts and circumstances of the case.
• Merely because the recruitment advertisement stipulated that applications were invited only from Indian citizens, the same cannot, by itself, constitute a valid ground for termination of services, particularly when the petitioner was initially appointed without any demur, is not an illegal immigrant, and her residence in India stands regularised.
• The action of the bank in terminating the petitioner’s services solely on the ground that she is not a citizen of this Court is arbitrary, discriminatory and violative of Article 14 of the Constitution of India