ivil Appeal No 4479 of 1990
357 From the Judgment and Order dated 194
1989 of the Madhya Pradesh High Court in MP No 1378 of 1989
SK Dholakia and D Bhandari for the Appellant
Kapil Sibal
Additional Solicitor General GL Sanghi BR Agarwala
Ms Sushma Manchanda SK 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
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 GR Medical College Gwalior
They had duly passed the MBBS 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 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
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
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 23101989 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 AK 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 1703Dir
GMS89 dated 3131989 the objec tions raised were rejected and her merit stands as status quo
Accordingly the final list was published on 811
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
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 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 AK Kraipak and Other vs Union of India and Others 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 vs State of Haryana and Others 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
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 GL Sanghi also relied upon the letter dated 318
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 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 foradmission 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 MBBS 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
RSS Appeal dismissed


Summary:
For the assessment year 1946 47 the appellant a Hindu undivided family carrying on business filed a petition before the income tax Officer under section 25A of the Indian Income tax Act 1922 claiming that there had been a partition in the family on April 241945
As regards the income assessable under section 23 Of the Act the appellant s case regarding six sums aggregating to Rs 230346 shown in the accounts as the sale proceeds of ornaments was that at the partition the jewels of the family were sold and that the price realised therefrom was invested in the business
The Income tax Officer held that the partition was true and that the family had become divided into five groups but as regards the amount of Rs 230346 aforesaid he rejected the explanation given by the appellant as to how the amount came to be received and held that the amount was not the proceeds of the family jewels sold but represented concealed profits of the business
He accordingly included the said amount in the taxable income
The appellant s contentions inter alia before the Appellate Tribunal were 1 that the order passed under section 25A of the Act by the Income tax Officer must be held to have decided the factum of a partition in the family as well as the possession and division of the jewels as set up by the appellant and that it was not open to the Department to contend that the amount in question did not represent the value of the family jewels and 2 that in any case there was no evidence to show that the amount represented undisclosed profits
Held that when a claim is made under section 25A of the Indian Income tax Act 1922 the points to be decided by the Incometax Officer are whether there has been a partition in the family and if so what the definite portions are in which the division had been made among the members or groups of members
The question as to what the income of the family assessable to tax under section 233 was would be foreign to the scope of an enquiry under section 25A and any finding thereon would not be conclusive in assessment proceedings under section 23
416 Held further that the assessee in the present case having failed to explain satisfactorily the truth of what is a credit in business accounts the Income tax Officer was entitled to draw the inference that the amount credited represents in reality a receipt of an assessable nature