* IN THE HIGH COURT OF DELHI AT NEW DELHI

Reserved on: 21st November, 2024

Pronounced on: 27th November, 2024

+ W.P.(C) 9449/2024 & CM APPL. 67808/2024 (for directions)

KSHITIJ GUPTA .....Petitioner

Through: Mr. Kumar Abhishek and Ms.
Anamika Mishra, Advocates with
Petitioner (in-Person).

versus

UNION OF INDIA & ORS. .....Respondents

Through: Ms. Nidhi Raman, CGSC with Mr.

Zubin Singh, Ms. Rashi Kapoor and
Mr. Akash Mishra, Advocates with
Mr. Gokul Sharma, G.P. for R-1 & 2.
CORAM:
HON'BLE MR. JUSTICE SANJEEV NARULA
JUDGMENT

SANJEEV NARULA, J.:

1. Mr. Kshitij Gupta, a citizen of the United States of America holding
the status of an Overseas Citizen of India,1 has invoked the jurisdiction of
this Court under Article 226 of the Constitution of India, 1950. He
challenges the denial of his application for special work permission, as
communicated to him on 3rd July, 2024 by the Foreigners Regional

1
“OCI”

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 Registration Office,2 Respondent No. 3. The permission was sought in
connection with an employment offer extended to him by the British High
Commission, New Delhi for the post of Country Based Clearance Officer at
Grade – Executive Officer. The requirement for an OCI cardholder to obtain
a special work permit, prior to employment in any diplomatic mission in
India is stipulated in notification dated 4th March, 2021, issued by the
Ministry of Home Affairs.3
FACTURAL MATRIX
2. The backdrop leading to present petition is as follows:
2.1. The Petitioner is a citizen of the United States of America since 17th
September, 2008 and was issued an OCI card on 28 th September, 2009. He
currently resides in New Delhi, India with his parents after returning from
the U.S.A.
2.2. In October, 2023, the Petitioner applied for the role of Country Based
Clearance Officer at Grade – Executive Officer at the British High
Commission, New Delhi. After successfully navigating the selection
process, he received an employment offer on 20th December, 2023, which he
duly accepted.
2.3. Concurrently, the Petitioner initiated the process of obtaining the
mandatory special work permit required for employment in diplomatic
missions by submitting an application to the FRRO. His application was
acknowledged on 15th December, 2023 and forwarded for further processing
on 20th December, 2023. On 7th March, 2024, the British High Commission
informed him that he had been placed on a reserved list effective 28 th

2
“FRRO”
3
“MHA”

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 November, 2023. This list allows a 12-month period for candidates to secure
a special work permit, failing which they may reapply for future
opportunities.
2.4. While pursuing the matter with the MHA and the Consular, Passport
and Visa Division of the Ministry of External Affairs,4 the Petitioner was
informed that his application required approval from the Protocol Division,
MEA, owing to his status as a third country national. Ultimately, on 25th
June, 2024, the online portal reflected the status of denial of Petitioner’s
request.
2.5. Thereafter, on 3rd July, 2024, the FRRO formally intimated the
decision and advised him to approach Protocol-III Division, MEA via the
British High Commission.
2.6. Subsequently, on 30th July, 2024, the British High Commission
formally requested Protocol-II Division, MEA to issue the requisite special
work permit to the Petitioner. However, this request was declined by the
MEA through a Note Verbale dated 19th October, 2024.
2.7. Aggrieved by these developments, the Petitioner has approached this
Court seeking directions to the Consular, Passport and Visa and Overseas
Indian Affairs Division of MEA to issue a No-Objection Certificate, along
with directions to the MHA to approve his application for a special work
permit.
PETITIONER’S CONTENTIONS
3. In the above background, the counsel for Petitioner makes the
following submissions:

4
“MEA”

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 3.1. Petitioner’s application for the special work permit is time-sensitive.
While the MHA processed and forwarded the application expeditiously to
the MEA, the procedural clearance by the MEA was inordinately delayed
for over four months. Ultimately, the application was denied by the MEA on
25th June, 2024, without disclosing any reasons, rendering the Petitioner’s
efforts futile.
3.2. During the pendency of his application, the British High Commission,
New Delhi, advertised similar positions on two occasions—29th March,
2024 and 20th May, 2024. Had the special work permit been granted in a
timely manner, the Petitioner could have secured employment.
3.3. The Petitioner satisfies the eligibility criteria and due procedure was
adhered to by both the Petitioner and the British High Commission. All
requisite information sought by Protocol-II Division, MEA was promptly
furnished by the British High Commission. Despite a formal request made
by the Commission on 30th July, 2024 for issuance of the permit, the MEA
wrongfully rejected the Petitioner’s application, unjustly depriving the
Petitioner of a legitimate employment opportunity.
RESPONDENTS’ CASE
4. Per contra, Ms. Nidhi Raman, CGSC for the Respondents defends the
impugned action and makes the following submissions:
4.1. The employment of Third Country nationals by Foreign
Representations in India is governed by principles of reciprocity, predicated
on presumed assurances by the sending state—in this case, the United
Kingdom—to allow similar requests from the receiving state, i.e., India.
This principle is enshrined in Chapter XXXIV of the Protocol Handbook

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 issued by the Protocol Division, MEA,5 which lays down the prerequisites
for employment of third country and home country nationals by foreign
missions. The rationale is to preserve India’s diplomatic relations, safeguard
its sovereign interests and prioritize employment opportunities for qualified
Indian citizens. Further, Article 8 of the Vienna Convention on Diplomatic
Relations, 1961, governs the nationality of members of diplomatic staff,
stipulating that such individuals should generally be nationals of the sending
state. However, it allows the receiving state to authorize the employment of
individuals who are nationals of either the receiving state or a third country.
The Note Verbale issued by the MEA on 5th January, 2024 mandates that
foreign representations must obtain prior approval before employing or
engaging an OCI cardholder.
4.2. The Petitioner and the British High Commission, failed to adhere to
the procedural requirements. The communication dated 30th July, 2024 from
the British High Commission to Protocol-II, MEA, is deficient in several
respects:
i. The communication was issued nearly seven months after extending
the offer of employment to the Petitioner, reflecting an undue delay.
ii. It furnished the Petitioner’s particulars and indicated the
Commission’s intent to employ him, but lacked any cogent justification for
appointing a third country national to a local post, as mandated by the
Protocol Handbook.
iii. The communication ambiguously sought a special work permit for the
Petitioner, who had been placed on a reserved list, without specifying the

5
“the Protocol Handbook”

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 nature of the position he would be offered in the future.
4.3. In light of these deficiencies, Protocol-II Division, MEA, through its
communication dated 19th October, 2024, conveyed its reasons for declining
the request to the British High Commission.
4.4. There is no express or implied assurance of reciprocity from the
United Kingdom that would apply to the instant case. The absence of such
reciprocity not only undermines India’s sovereign and diplomatic interests
but also impacts public interest.
ANALYSIS AND FINDINGS
5. Having considered the submissions of both parties and perused the
records, the Court proceeds to examine the issues at hand.
Notification and Eligibility
6. The Petitioner, an American citizen and OCI cardholder, had applied
for the position of Country Based Entry Clearance Officer, Grade – EO, as
advertised by the British High Commission. The role involves accessing and
handling classified or sensitive commercial information, and restricts
eligibility to nationals of specific countries. The relevant excerpt from the
job posting stipulates:
“Please note: The role will involve access to and handling of classified or
sensitive commercial information therefore, Applicant must already hold a
minimum of the UK’s SC level of clearance or be able to achieve it.
Because of the security clearance requirement mentioned above, only
nationals of the following countries are eligible to apply:
UK or other EU country, Canada, Australia, USA, New Zealand.”

7. As per the notification dated 4th March, 2021 issued by the MHA
under Section 7B(1) of the Citizenship Act, 1955, OCI cardholders enjoy
certain rights and privileges but are subject to specific conditions. One such

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 condition mandates obtaining special permission from the competent
authority—the FRRO or the relevant Indian Mission—for employment in
any foreign diplomatic mission within India.
8. The Petitioner contends that the notification applies prospectively and
should not affect his application. However, since the job posting arose after
the issuance of the notification, the requirement for work permit is fully
applicable to his case. Thus, notwithstanding the Petitioner’s eligibility and
suitability for the job, he is obligated to obtain a special work permit.
Note Verbale dated 5th January, 2024 and 19th October, 2024
9. The employment of OCI card holders is additionally governed by the
Note Verbale dated 5th January, 2024 issued by Protocol-II Division, MEA.
It mandates Diplomatic Missions to seek prior permission of MEA before
employing an OCI cardholder in any capacity such as internship, research
assignment, part-time employment, full time employment, diplomatic and
official assignment or in any other capacity, whether remunerated or non-
remunerated, in India. The said Note reads as follows:

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 10. On 30th July, 2024, the British High Commission communicated its
intent to employ the Petitioner and requested Protocol-II Division, MEA to
issue the special permit. The said communication reads to the following
effect:
“The British High Commission in India presents its compliments to the
Ministry of External Affairs, Government of India and has the honour to
enclose the details of Mr Kshitij Gupta.
The British High Commission have been informed by Mr. Gupta that the

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 Protocol-II Section of the Ministry of External Affairs, would like an
official correspondence regarding his offer and reserved status with
regards to his application for the role of Country Based Entry Clearance
Officer (ECO) at Grade - Executive Officer (EO).
The British High Commission would like to inform that Mr Kshitij Gupta
was offered the role of Country Based Entry Clearance Officer (ECO)
(open to foreign nationals/OCI card holders) in December 2023, subject
to him obtaining the special work permit from Government of India.
However, his offer was revoked in March 2024 following his inability to
secure a special work permit. Hence, he was placed on a reserved list for
a period of 12 months from his original date of interview, wherein British
High Commission may get in touch with him, only if, a similar opportunity
arises in future and subject to him securing a valid special work permit,
which would enable him to work with the organisation.
As special work permit from Government of India is a mandatory
requirement for OCI card holders to work in any diplomatic mission,
hence the British High Commission would request you to issue a special
work permit to Mr. Gupta.
The personal details for Mr. Gupta, as furnished by him in his job
application form are listed below:
Name of Foreign Representation: British High Commission, New Delhi

S No. Name and Date of Passport Date of Residential Particular

Designation Birth No. Date & arrival In Address & s of
place of India Tel. No. accompan
Issue ying
member(s)
of family

1 2 3 4 5 6 7
1 Mr Kshitij 29th 567318873 Not 33 Not
Gupta November Furnished Hanuman Furnished
1983 Road, New
Delhi
110001.
+91-
991020173
7

The British High Commission avails itself of this opportunity to renew to

the Ministry the assurances of its highest consideration.”

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 11. However, the afore-noted request was denied through the Note
Verbale dated 19th October, 2024. The said Note is extracted hereunder:

12. The aforesaid denial was based on non-compliance with the

provisions of the Protocol Handbook which requires a justification when a
third country national is being employed against a local post. To this effect,
Clause 1 of Chapter XXXIV of the Protocol Handbook reads as under:

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 “1. The FRs are supposed to employ either home country nationals as staff
members in official capacity with valid official/service passports or Indian
nationals as locally recruited support staff. Third country/ home country
nationals should not be employed against a local post in general. FRs
desirous to employ Third country/Home Country nationals against local
posts will seek prior approval of the Ministry of External Affairs (through
Protocol-II Section) with proper justifications and by submitting
particulars of the prospective employee to Protocol-II Section for
processing visa. Each request will be examined on case to case basis.”

13. Upon examining the communication dated 30 th July, 2024, issued by

British High Commission, it becomes apparent that the while a request was
made for issuance of a special permit for the Petitioner, no justification was
offered for appointing a third country national. The absence of such
justification, according to the Indian authorities, raises legitimate concerns
about prioritizing foreign nationals for roles that should ideally serve local
employment interests. Such an appointment has broader implications,
including the displacement of employment opportunities for Indian citizens.
Moreover, the job posting in question does not specify any qualifications or
expertise unique to the Petitioner that could not reasonably be fulfilled by an
Indian citizen.
14. On this issue, on 28th October, 2024, in order to find a resolution, the
Petitioner was directed to confirm whether the British High Commission
was willing to reapply to the MEA, providing proper justification for
employing a third country national against the job posting post, as required
under the Protocol Handbook.
15. Pursuant to the afore-noted directions, the Petitioner corresponded
with British High Commission and in response, the Commission issued
communication dated 6th November, 2024 stating that Protocol-II Division,
MEA has not sought any further justification from the Commission

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 regarding Petitioner’s employment. The British High Commission has,
however, expressed its willingness to provide such justification, should the
Protocol Division directly seek it from them. To this effect, the
communication reads as follows:
“Dear Kshitij,
We hope this message finds you well. This is to acknowledge the receipt
of your email.
We understand that in continuation to your special work permit grant
request from MEA, you would like to seek further justification from us
on the role requirements and your candidature considerations for the
role of Country Based Entry Clearance Officer (ECO). We wanted to
apprise you that as per the last communication received by us from
MEA, we were not requested for any further information on the note
verbale.
While we are keen to support you, however, we would require the
Protocol Division, MEA, Government of India to contact us directly
and we would provide the required details, as requested by them. Also,
you may share the legal requirements from the Hon’ble Delhi High
Court with them to expedite the request.
Thank you for your understanding and patience.”

16. In light of the afore-mentioned developments, the Petitioner filed CM

APPL. 67808/2024, seeking directions from this Court to mandate the
Respondents to engage proactively with the British High Commission to
obtain the necessary justifications concerning his employment. The
Petitioner requests the Court to compel the MEA to initiate communication
with the British High Commission and seek requisite explanations for
employing a third country national.
17. The Respondents remain resolute on this issue. They assert that it is
incumbent upon the British High Commission to initiate diplomatic channels
and not the other way around. The MEA emphasizes that if the British High
Commission intends to employ a third country national, the onus lies
squarely upon them to furnish a cogent justification for such an

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 appointment, as mandated by the Protocol Handbook. Reversing this
protocol would not only undermine the established diplomatic procedures
but also set an undesirable precedent.
18. The Court concurs with the stance of the Respondents. The Protocol
Handbook clearly stipulates that foreign representations must proactively
seek approval from the MEA, providing detailed justifications for
appointments of third country nationals. In this case, the British High
Commission’s communication lacked the requisite justification. The
diplomatic communications are sensitive and adhere to strict protocols to
respect the sovereignty and procedural norms of both nations involved. The
responsibility to provide justifications for employment decisions rests
unequivocally with the British High Commission. It is neither appropriate
nor within the purview of this Court to issue a mandamus compelling the
MEA to deviate from these protocols, especially when the initiating action is
expected from the foreign state seeking the exception. Judicial intervention
to facilitate such exchanges is beyond the Court’s remit. Therefore, the
Court finds no merit in the Petitioner’s request to compel the Respondents to
engage with the British High Commission in the manner sought.
Accordingly, the request made in application CM APPL. 67808/2024 is
declined.
Issue of Reciprocity and Diplomatic Considerations
19. The Respondents have raised the issue of reciprocity, a fundamental
principle in diplomatic relations. As per Clause (3)(a) of Chapter XXXIV of
the Protocol Handbook, permission to employ third country nationals is
granted based on presumed assurances of reciprocity by the sending state.
The said provision reads as follows:

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 “3. The employment of third country/home country nationals are
governed by following conditions:
a) Permission granted shall be on the basis of presumed assurances
of reciprocity by the Sending State in allowing similar requests from the
Government of the Republic of India;
b) The employee would not hold Diplomatic/Official/Service/ Special
Passport;
c) The employee would avail “Employment Visa”;
d) The locally recruited foreign employee would not enjoy any
privilege and he/she would be treated at par with all other local
employees;
e) The employment shall be subject to the fiscal, social security and
exchange control regulations of India.”

20. To establish the existence of reciprocity between India and the United
Kingdom, the Petitioner relied on an advertisement dated 13 th May, 2021
issued by the Indian High Commission in London for the posts of
Electrician and Senior System Analyst. One of the conditions specified
therein was: “It is mandatory for the applicants to have a long-term valid
UK work permit/visa if they are not UK nationals.” Similarly, the Petitioner
cited another advertisement posted by the UK High Commission in
Washington, D.C., stating: “If you are not a US citizen or a US Permanent
Resident, or the dependant of a diplomat (with an EAD card), you may not
be eligible for employment with the UK Government.” The Petitioner argued
that these advertisements demonstrate a reciprocal practice between India
and the United Kingdom in employing third country nationals in their
respective diplomatic missions. This, according to the Petitioner, establishes
the principle of reciprocity.
21. Reciprocity is a foundational principle in diplomatic relations,
ensuring mutual respect and equitable treatment between nations. In absence
of an explicit assurance of reciprocity from the United Kingdom regarding
the employment of Indian nationals in similar capacities within their

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 missions, the Respondents are justified in exercising caution. The British
High Commission has not provided any written assurance or evidence of
reciprocal arrangements, undermining the basis for granting an exception in
this case.
22. The Court also finds merit in the contentions advanced by Ms. Raman
that the Petitioner has misconstrued the afore-mentioned advertisements to
establish reciprocity between India and the United Kingdom. As regards the
advertisement issued by the Indian High Commission in London, it allowed
both nationals of the United Kingdom and foreign nationals with valid work
permits to apply. It does not, in any manner, imply that only third country
nationals were eligible for the positions. This is in stark contrast to the job
posting which specifically restricted eligibility for the role of Country-Based
Clearance Officer to nationals of five designated countries. Thus, the two
job scenarios are fundamentally distinct, and the principle of reciprocity is
inapplicable in this context.
23. Additionally, the advertisement from the UK High Commission in
Washington, D.C., stipulated eligibility primarily for U.S. citizens,
permanent residents, or dependents of diplomats with appropriate
authorization. This, contrary to Petitioner’s contentions, reflects a standard
practice of prioritizing local nationals for employment within diplomatic
missions, aligning with international norms and the Vienna Convention on
Diplomatic Relations, 1961. The British High Commission’s approach in
New Delhi deviates from this practice by preferring third country nationals
over the host country’s citizens for local positions. Such selective hiring
practices not only undermine the principle of reciprocity but also raise
significant concerns related to national security and public interest.

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 Respondents are correct in arguing that by restricting positions to certain
foreign nationals without adequate justification, the British High
Commission potentially contravenes established diplomatic protocols and
affects equitable employment opportunities for qualified Indian citizens.
Thus, Petitioner’s reliance on the afore-mentioned advertisements does not
substantiate the existence of reciprocity, as the contexts and eligibility
criteria differ fundamentally. In light of these observations, the Court
concludes that the principle of reciprocity, as claimed by the Petitioner, is
not adequately established.
Residual grounds of challenge
24. Additionally, the Petitioner argued that Respondent’s reliance on the
Vienna Convention on Diplomatic Relations, 1961 is misplaced. He urged
that the employment in question pertains to a non-diplomatic role and is not
a permanent position within the UK Civil Service and, consequently, it does
not fall within the scope of diplomatic immunities and privileges outlined
under the Convention. Specifically, Article 1(f) of the Vienna Convention
defines “members of the administrative and technical staff” as those
employed in the administrative or technical services of the mission, and the
Petitioner does not qualify as a “member of the diplomatic staff” under this
provision. Further, Petitioner’s counsel emphasized that the national security
concerns raised by the Respondents are unjustified. The Petitioner maintains
an unblemished educational and professional record. The position was
secured following a stringent selection process involving an in-person
interview, police verification, and submission of professional references.
There are no adverse reports or incidents, either in India or abroad, that
could substantiate any security-related apprehensions against the Petitioner.

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 25. The Petitioner’s argument challenging the applicability of the Vienna
Convention on Diplomatic Relations, 1961, is untenable. While the role in
question may not be diplomatic per se, employment within a diplomatic
mission inherently engages concerns of national security, reciprocity, and
diplomatic propriety. Article 8 of the Convention states:
“1. Members of the diplomatic staff of the mission should in
principle be of the nationality of the sending State.
2. Members of the diplomatic staff of the mission may not be
appointed from among persons having the nationality of the
receiving State, except with the consent of that State, which may be
withdrawn at any time.
3. The receiving State may reserve the same right with regard to
nationals of a third State who are not also nationals of the sending
State.”

26. While the Convention addresses the employment of diplomatic staff,

the underlying principle grants discretion to the receiving state to approve or
deny appointments of foreign nationals within diplomatic missions. This
discretion is crucial for safeguarding national security and ensuring that
diplomatic privileges are not misused.
27. The Petitioner may be having impeccable credentials and the merit he
brings to the table, yet it is imperative to recognize that matters of national
security and diplomatic relations transcend individual qualifications.
28. The Respondents’ decision to deny the special work permit to the
Petitioner is not a reflection on his personal integrity or capabilities but a
prudent exercise of their mandate to protect national security. The denial, is
founded on non-compliance of the procedures and the absence of requisite
justifications from the British High Commission. The Court appreciates the
Petitioner’s aspirations and acknowledges the challenges faced. However,
the sanctity of diplomatic protocols and national interests must prevail over

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 individual grievances. The Petitioner may explore other avenues consistent
with the laws and regulations governing employment in diplomatic
missions.
29. For the forgoing reasons, the Court finds no merit in the present
petition. Dismissed.

SANJEEV NARULA, J
NOVEMBER 27, 2024
d.negi

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