DR. (MRS.) KIRTI DESHMANKARversusUNION OF INDIA AND ORS.

                    DR. (MRS.) KIRT! DESHMANKAR
                                                                                 A
                                  v.
                      UNION OF INDIA AND ORS.

                             SEPTEMBER 6, 1990

          [M.H. KANIA AND LAUT MOHAN SHARMA, JJ.]                                B

         Professional Colleges-Admission of Medical College-Foreign
    national-Admission of-No objection certificate by Ministry of Exter-
    nal Affairs no substitute for certificate of no objection by Ministry of
    Health & Family Planning.                                     ·

         Natural Justice-Regrettable that rules of natural justice not           C
    heeded even by highly.educated persons.

         The appellant and respondent No. S along with others were candi-
    dates for admission to the post-graduate course in Obstetrics and
    Gynaecology in the G.M. Medical 'College, Gwalior. Respondent No. S D
    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~ ~ on the
    gronnd that the latter was a foreign national and was not entitled to be
    considered for admission in absence of prior clearance certificate by the E
    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 imaliy selected.

         The respondent had however produced a no objection letter from
    the Ministry of External Affairs. Later, she was also able to obtain the     F
    necessary certificate from the Ministry of Health and Family Welfare.

         The writ application nuder Article 226 of the Constitution filed by
    the appellant was dismissed by a Full Bench of the Madhya Pradesh
    High Court.
                                                                                 G
           Before this Court it was contended on behalf of the appellant that
    (i) the selection of resj>0ndent no. S was vitiated on account of partici-
    pation 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. S to have produced before the College and Hospital            H

                                       355
    356         SUPREME COURT REPORTS                [1990] Supp. I S.C.R.

A   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 could not be a substitute.

          D.ismissing the appeal on merits, this Court,
B
           HELD: (1) The mother-in-law of respondent Iio. 5 was, without
    any doubt, vitally interested in the admission of her daughter-in-law
    and her presence in the meeting of the Council most be held to have
    vitiated the selection of respondent no. 5 for admission.

        A. K. Kraipak v. Union of India, [1970] 1 SCR 457; Aihok
c   Kumar Yadav v. State of Haryana, [1985] 4 SCC 417, referred to.

          (2) 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
o   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 allotted to a foreign national only at
    the cost of a citizen of this Country. The College and Hospital Council
E   was, therefore, 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.
F
          (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
G   clearance, there does not remain any reason for rejecting the rlaim 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.

          CIVIL APPELLATE JURISDICTION: Civil Appeal No. 4479
H   of 1990.
              KIRT! DESHMANKAR v. U.0.I. [SHARMA, J.l              357

      From the Judgment and Order dated 19.4.1989 of the Madhya
Pradesh High Court in M.P. No. 1378of1989.                               A

      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, Mahender Singh,          Ii
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 other> c
were candidates for admission to the Post-graduate Course in Obstet-
rics and Gynaecology in the G.R. Medical College, Gwalior. They had
duly passed the M.B.B.S. examination and satisfied the other essential
conditions for admission. The selection of the candidates was made on
the basis of their relative merit and the respondent no. 5 was selected D
as the last candidate in the list of the successful applicants. The appel-
lant was placed on the top of the waiting list and was admitted for the
Diploma Course. She challenged the admission o(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 Welfare, Central E.
Government; which she could not file along with her application nor
could she produce it before she was finally seiected. 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 arid was dismissed
by the judgment under appeal.
                                                                           F
       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 subse-
quent order the Instruction which in terms had been issued for a G
particular year was kept alive. The learned counsel for the respondents
have hot disputed the binding nature of the Instruction. But there is a
serious dispute about its interpretation.

     4. After the receipt of the applications for admission the matter
was scrutinised by a committe~ described as the College and Hnspital      H
    358         SUPREME COURT REPORTS               [1990] Supp. 1 S.C.R.

    Council and it prepared a merit list in which the respondent no. 5
A   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 produced the necessary certificate from the Ministry of Health
    and Family Welfare. It appears that the respondent no. 5 had pro-
B   duced 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-in-
    law of the respondent 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
c   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
D              . objections 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
E   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 follow-
    ing two points in support of the appeal:

F         (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 necessary
          for the respondent no. 5 to have produced before the College
G         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 mate-
          rial. Also the certificate issued by the Ministry of External
          Affairs could not be a substitute for the Ministry of Health and
H         Family Welfare.
             KIRT! DESHMANKAR v. U.O.l. !SHARMA, J.]                 359

      6. The first argument of the learned counsel for the appellant is
well-founded. Dr. (Mrs.) P. Oliyai was, without any doubt. vitally A
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 the respondent no. 5 for admission. As was observed in A.K.
Kraipak and Other v. Union of India, and Others, [1970] 1SCR457.
there was a conflict between her interest and duty and taking into B
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 delebera-
tions where the claims of his rivals were considered and in the prepara-    c
tion of list were held to have necessarily caused an impact on the
seleciion, as the Board must have given weight to his opinion. In that
case the other members cif the Bo.ard had filed affidavits stating that
the Acting Chief Conservator had in no manner influenced their deci-
sion, but this was not considered sufficient to save the selection. The D
principle has been followed in numerous cases including in Ashok ·
Kumar Yadav and Others v. State of Haryana and Others, [1985] 4 SCC
417, 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 E
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 o(the De~n to have seen that Dr. Oliyai did so before
proceeding with the selection process. We, accordingly hold that the F
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 properly constituted selection
committee, but having regard to the nature of the dispute between the       G
rival doctors for tlfe right of admission to the course of study for the
present session which is fast progressing necessitating expeditious dis-
posal 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 considered the same at some length, and we
proceed to decide the controversy finally here.                             H
    360         SUPREME COURT REPORTS                [ 1990] Supp. 1 S.C.R.

          8. Although during the hearing the learned advocates for the
A
    parties made submissions dealing with several other facets of the dis-
    puted 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
B   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 i11 this-argument, as admittedly the respon-
    dent 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 3 J.8.1989 issued by the Ministry of Exter-
    nal Affairs in favour of the respondent which was relied upon by the
c   College and Hospital Council for rejecting the objection of the appel-
    lant. This again cannot be of 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.
D   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 hospitality of the country in the backgrnund 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 ques-
    tion whether a seat for the medical course either upto the Degree
E   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
    {nstitutions of higher technical education 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 respondent no. 5 on the
F   strength of no objection certificate by the Ministry of External Affairs.

          9. Now remains the question as to meaning of the aforesaid
    Jnstruction 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
G   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
H               and Family Welfare gives its clearance.
              KIRT! DESHMANKAR v. U.0.1. [SHARMA. J.]                361

According to the appellant the stage at which the condition mentioned       A
above has to be satisfied is when· the fiqal selection 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 necessary certificate is produced before the actual admission
takes place, the same cannot be held to be illegal. The learned counsel
pointed out that the purpPse of the Instruction is to ensure that no        B
foreign national is allowed to occupy a seat ordinarily meant for the
citizen of the country without the· permission of the Ministry of Health
anq 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 a more meritorious candidate. He emphasised the fact _that     c
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 admis-
sion of the respondent no. 5 cannot be ignored or cancelled on the
ground of any illegality. The appeal is, therefore, dismissed but, in the
<;ircumstances, without costs.·                                             D

R.S.S.                                                Appeal dismissed.