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PETITIONER: DR. (MRS.) KIRTI DESHMANKAR

       Vs.

RESPONDENT: UNION OF INDIA AND ORS.

DATE OF JUDGMENT06/09/1990

BENCH: SHARMA, L.M. (J) BENCH: SHARMA, L.M. (J) KANIA, M.H.

CITATION:  1990 SCR  Supl. (1) 355  1991 SCC  (1) 104  JT 1991 (5)   291        1990 SCALE  (2)471

ACT:     Professional     Colleges--Admission     of:     Medical College--Foreign  national--Admission of -No objection  cer- tificate  by Ministry of External Affairs no substitute  for certificate  of no objection by Ministry of Health &  Family Planning.     Natural  Justice--Regrettable  that  rules  of   natural justice not heeded even by highly educated persons.

HEADNOTE:     The  appellant  and respondent No. 5 along  with  others were candidates for admission to the post-graduate course in Obstetrics  and  Gynecology  in the  G.M.  Medical  College, Gwalior. Respondent No. 5 was selected as the last candidate in the list of the successful applicants. The appellant  was placed on the top of the waiting list.     The appellant challenged the admission Of respondent no. 5  on the ground that the latter was a foreign national  and was  not entitled to be considered for admission in  absence of prior clearance certificate by the Ministry of Health and Family Welfare, Central Government, which she could not file along  with her application nor could she produce it  before she was finally selected.     The  respondent  had  however produced  a  no  objection letter from the Ministry of External Affairs. Later, she was also  able  to  obtain the necessary  certificate  from  the Ministry of Health and Family welfare.     The writ application under Article 226 of the  Constitu- tion filed by the appellant was dismissed by a Full Bench of the Madhya Pradesh High Court.      Before  this  Court it was contended on behalf  of  the appellant  that  (i) the selection of respondent no.  5  was vitiated  on  account of participation of  the  respondent’s mother-in-law (a former Professor and Head of Department) as a member of the College and Hospital Council; and (ii) under the  Government of India Instructions it was  necessary  for respondent  no.  5 to have produced before the  College  and Hospital 356 Council  the  necessary  certificate from  the  Ministry  of Health  and Family Welfare before her final  selection,  and the  certificate issued by the Ministry of External  Affairs

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could not be a substitute. Dismissing the appeal on merits, this Court,     HELD:  (1)  The mother-in-law of respondent no.  5  was, without  any doubt, vitally interested in the  admission  of her  daughter-in-law and her presence in the meeting of  the Council  must  be  held to have vitiated  the  selection  of respondent no. 5 for admission.     A.K. Kraipak v. Union of India, [1970] 1 SCR 457;  Ashok Kumar Yadav v. State of Haryana, [1985] 4 SCC 417,  referred to.     (2) It is regrettable that in spite of repeated  remind- ers  by the Courts of law, the College and Hospital  Council constituted  by  a  number of highly  educated  persons  and headed  by  the  Dean himself did not pay any  heed  to  the principles of natural justice.     (3)  The  State  has to spend a large sum  of  money  in running  institutions of higher technical education and  the seats are limited. In such a situation a seat can be  allot- ted  to a foreign national only at the cost of a citizen  of this  Country. The College and Hospital Council was,  there- fore, not right in deciding to admit the respondent no. 5 on the strength of no objection certificate by the Ministry  of External Affairs.     (4)  A  certificate of no objection  by  one  Department cannot be a substitute for the clearance by the other.     (5) The purpose of the Instructions is to ensure that no foreign  national  is allowed to occupy  a  seat  ordinarily meant for the citizen of the country without the  permission of the Ministry of Health and Family Welfare, Government  of India, and once that hurdle is cleared, the purpose is fully satisfied. After the production of the necessary  clearance, there does not remain any reason for rejecting the claim  of respondent  No. 5 who was a more meritorious candidate,  who had secured higher percentage of marks than the appellant in the M.B.B.S. examination.

JUDGMENT:     CIVIL  APPELLATE JURISDICTION: Civil Appeal No. 4479  of 1990. 357     From  the  Judgment and Order dated 19.4.  1989  of  the Madhya Pradesh High Court in M.P. No. 1378 of 1989. S.K. Dholakia and D. Bhandari for the Appellant.     Kapil Sibal. Additional Solicitor General, G.L.  Sanghi, B.R. Agarwala. Ms. Sushma Manchanda, S.K. Agnihotri,  Mahen- der  Singh, Ms. Sushma Suri, Ujjwal A. Rana and Ashok  Singh for the Respondent. The Judgment of the Court was delivered by SHARMA, J. Special leave is granted.     2.  The  appellant and the respondent no. 5  along  with others  were candidates for admission to  the  Post-graduate Course  in  Obstetrics and Gynaecology in the  G.R.  Medical College, Gwalior. They had duly passed the M.B.B.S. examina- tion and satisfied the other essential conditions for admis- sion. The selection of the candidates was made on the  basis of their relative merit and the respondent no. 5 was select- ed  as  the  last candidate in the list  of  the  successful applicants.  The  appellant  was placed on the  top  of  the waiting  list and was admitted for the Diploma  Course.  She challenged  the  admission of the respondent no.  5  on  the ground  that the latter was a foreign national, and was  not entitled to be considered for admission in absence of  prior clearance  certificate by the Ministry of Health and  Family

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Welfare, Central Government; which she could not file  along with her application nor could she produce it before she was finally  selected. A writ application under Article  226  of the Constitution filed by the appellant was heard by a  Full Bench of the Madhya Pradesh High Court and was dismissed  by the judgment under appeal.     3. The learned counsel for the appellant has relied upon the  Instruction  dated the 6th August, 1983 issued  by  the Government of India, Ministry of Health and Family  Welfare, to  the  Deans and the Principals of  all  Medical  Colleges regarding  procedure  for admission of foreign  students  in medical  institutions in the country. By a subsequent  order the Instruction which in terms had been issued for a partic- ular  year was kept alive. The learned counsel for  the  re- spondents  have not disputed the binding nature of  the  In- struction.  But there is a serious dispute about its  inter- pretation.     4.  After the receipt of the applications for  admission the  matter was scrutinised by a committee described as  the College and Hospital 358 Council and-it prepared a merit’list in which the respondent no.  5  ranked higher than the  appellant.  Objections  were invited latest by the 23.10.1989 and the appellant filed her application  within time alleging that the respondent no.  5 was  not eligible for admission at all as she had  not  pro- duced the necessary certificate from the Ministry of  Health and Family Welfare. It appears that the respondent no. 5 had produced  a  letter from the Ministry  of  External  Affairs stating  that  the  said Ministry had no  objection  to  the admission of the respondent. The objection was considered by the College and Hospital Council of which besides others the Dean  Dr.  A.K. Govila as also the mother-inlaw of  the  re- spondent no. 5. Dr. (Mrs.) P. Oliyai, a former Professor and Head of the Department of Obstetrics and Gynaecology of  the College were members. The objection raised by the  appellant was rejected by the following decision: "(b) Dr. Roza Oliyai, since married to an Indian Doctor  and obtained  the  permission of Ministry  of  External  Affairs (Letter No. 1703/Dir. (GMS)/89  dated 31.3.1989), the objec- tions  raised were rejected and her merit stands  as  status quo. Accordingly the final list was published on 8.11. 1989.  The respondent no. 5 was, however, able to obtain the  necessary certificate  from the Ministry of Health and Family  Welfare later and the same was filed in the College. The  respondent no.  5 was formally admitted in the first week of  December, 1989.     5. The learned counsel for the appellant has pressed the following two points in support of the appeal: (a) The selection of the respondent no. 5 by the College and Hospital Council was vitiated on account of participation of the respondent’s mother-in-law as a member; and (b) Under the Government of India Instruction it was  neces- sary  for the respondent no. 5 to have produced  before  the College and Hospital Council the necessary certificate  from the  Ministry of Health and Family Welfare before her  final selection.  The crucial date was when the respondent  no.  5 was  finally  selected  and her formal  admission  later  in December, 1989 was not material. Also the certificate issued by  the Ministry of External Affairs could not be a  substi- tute for the Ministry of Health and Family Welfare. 359     6.  The  first argument of the learned counsel  for  the appellant is well-founded. Dr. (Mrs.) P. Oliyai was, without

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any doubt. vitally interested in the admission of her daugh- ter-in-law  and her presence in the meeting of  the  Council must be held to have vitiated the selection of the  respond- ent no. 5 for admission. As was observed in A.K. Kraipak and Other v. Union of India, and Others, [1970] 1 SCR 457. there was a conflict between her interest and duty and taking into consideration human probabilities in the ordinary course  of human conduct, there was reasonable ground for pleading that she  was likely to have been biased. In the  Kraipak’s  case the  person  concerned was the Acting Chief  Conservator  of Forests who did not participate in some of the deleberations of the selection Board, but the fact that he was a member of the  Board  and that he participated  in  the  deleberations where  the claims of his rivals were considered and  in  the preparation of list were held to have necessarily caused  an impact on the selection, as the Board must have given weight to his opinion. In that case the other members of the  Board had filed affidavits stating that the Acting Chief Conserva- tor had in no manner influenced their decision, but this was not considered sufficient to save the selection. The princi- ple  has been followed in numerous cases including in  Ashok Kumar  Yadav  and  Others v. State of  Haryana  and  Others, [1985]  4 SCC 4 17, where it was emphasised that it was  not necessary  to establish bias and that it was  sufficient  to invalidate  the selection process if it could be shown  that there  was reasonable likelihood of bias. It is  regrettable that  in spite of repeated reminders by the courts  of  law, the College and Hospital Council constituted by a number  of highly  educated persons and headed by the Dean himself  did not  pay any need. It was expected of Dr. (Mrs.)  Oliyai  to dissociate from the Council instead of espousing the case of her daughter-in-law and in any event it was the bounden duty of  the  Dean  to have seen that Dr. Oliyai  did  so  before proceeding with the selection process. We, accordingly  hold that the selection of the respondent no. 5 for admission  to the Post-graduate Course was vitiated in law.     7.  Ordinarily  as  a result of our  above  finding  the matter would have been sent for reconsideration by a proper- ly constituted selection committee, but having regard to the nature  of  the dispute between the rival  doctors  for  the right  of admission to the course of study for  the  present session which is fast progressing necessitating  expeditious disposal of the issue, we asked the learned counsel for  the parties  to  place  the merits of  their  respective  cases. Accordingly,  arguments were addressed, and we have  consid- ered  the same at some length, and we proceed to decide  the controversy finally here. 360     8. Although during the hearing the learned advocates for the  parties  made submissions dealing  with  several  other facets  of the disputed issue, but ultimately  they  agreed, and  in  our  view rightly, that the final  outcome  of  the present litigation is dependent on the interpretation of the direction  as  contained in the Instruction  issued  by  the Ministry of Health and Family Welfare, referred to above. At one stage it was suggested on behalf of the respondent  that since she has now acquired Indian nationality, she cannot be thrown  out of the College. There is no merit in this  argu- ment, as admittedly the respondent was not a citizen of this country when she was actually admitted in the College in the first  week of December, 1989. Mr. G.L. Sanghi  also  relied upon  the letter dated 31.8. 1989 issued by the Ministry  of External  Affairs  in  favour of the  respondent  which  was relied upon by the College and Hospital Council for  reject- ing the objection of the appellant. This again cannot be  of

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any  help. The role of the Ministry of External  Affairs  is distinctly different from that of the Ministry of Health and Family  Welfare,  and a certificate of no objection  by  one Department  cannot be a substitute for the clearance by  the other. Scrutiny by the Ministry of External Affairs is  made with  a  view  to screen the person concerned  to  find  out whether he is desirable person at all to enjoy the hospital- ity  of  the country in the background of  various  relevant factors  in this regard. So far the Ministry of  Health  and Family Welfare is concerned, it has to take into account the question  whether a seat for the medical course either  upto the Degree standard or the Post-graduate stage can be spared for  a foreign national. The State has to spend a large  sum of money in running institutions of higher technical  educa- tion  and the seats are limited. In such a situation a  seat can be allotted to a foreign national only at the cost of  a citizen  of this country. The College and  Hospital  Council was, therefore, not right in deciding to admit the  respond- ent no. 5 on the strength of no objection certificate by the Ministry of External Affairs.       Now  remains the question as to meaning of the  afore- said Instruction which contains two provisions as  mentioned in  clauses  (a)  and (b). Undisputedly clause  (a)  is  not attracted  in the present case as the seat in  question  has not been made available by the Ministry of Health and Family Welfare  and consequently there is no question of a  foreign student  to  be sponsored by the said Ministry.  The  second part of the Instruction as contained in clause (b) reads  as follows: "(b)  No foreign student, who is seeking admission  directly for such course, shall be admitted unless Ministry of Health and Family Welfare gives its clearance. 361 According to the appellant the stage at which the  condition mentioned above has to be satisfied is when the final selec- tion  for.admission  is made. Mr. Sanghi contends  that  the direction has to be construed in the light of the expression "admitted" used therein, which indicates that if the  neces- sary  certificate  is produced before the  actual  admission takes  place,  the same cannot be held to  be  illegal.  The learned counsel pointed out that the purpose of the Instruc- tion  is  to ensure that no foreign national is  allowed  to occupy a seat ordinarily meant for the citizen of the  coun- try  without  the permission of the Ministry of  Health  and Family Welfare, Government of India, and once that hurdle is cleared,  the purpose is fully satisfied. After the  produc- tion  of the necessary clearance, there does not remain  any reason for rejecting the claim of a more meritorious  candi- date.  He  emphasised  the fact that the  respondent  no.  5 having secured higher percentage of marks than the appellant in the M.B.B.S. examination was adjudged a better  candidate on merits. We agree. Accordingly, we find that the admission of  the respondent no. 5 cannot be ignored or  cancelled  on the  ground  of any illegality. The  appeal  is,  therefore, dismissed but, in the circumstances, without costs. R.S.S.                              Appeal dismissed. 362