judgement:
il Appeal No. 2860 of 1993.
From the Judgment and Order dt.
31.10.1990 of the Punjab and Haryana High Court in L.PA.
No. 1427 of 1982.
K. Lahiri and J.D. Jain for the Appellant.
D.V. Sehgal and K.K. Mohan for the Respondents.
The Judgment of the Court was delivered by G.N. RAY, J.
Special leave granted.
Heard learned counsels for the parties.
867 On the application for special leave to appeal notice was issued by this Court on the respondents indicating therein that the said application for special leave to appeal will be disposed of finally at the notice stage itself on the short question as to why the disciplinary proceedings and the order passed therein should not be set aside and a fresh enquiry should be ordered on the ground that one of the participants of the enquiry committee was biased.
Such notice was served on the respondents and the respondent Nos. 1 and 4 have entered appearance through a ' learned counsel and also filed counter affidavit to the special leave petition.
The appellant was appointed as Principal of Dr. Hari Ram (Co education) Higher Secondary School, Datarpur in Tehsil of Dasuya in the District of Hoshiarpur.
He was placed under suspension by the Managing Committee of the said School and charge sheet containing 12 charges was issued to the appellant.
Charge No. 12 was to the following effect: "the following amounts are reported to have been used by you and are unaccounted for: A sum of Rs. 129.37 on account of amalgamated fund for the ' month of December, 1969 given to you by Shri Maru Ram teacher ' incharge amalgamated fund.
" The school authorities appointed an enquiry committee consisting of three members of which the said Shri Maru Ram was one of the members.
It is an admitted position that the said Shri Maru Ram appeared as a witness in support of charge No. 12 on behalf of administration in the said enquiry proceedings.
The appellant raised an objection for inclusion of the said Shri Maru Ram in the enquiry, committee but the said objection of the appellant was overruled by the Enquiry ' Committee inter alia on the ground that "similarly your objection to the appointment of Shri Maru Ram in the enquiry committee is ill conceived, unfounded, unjustified and invalid because, Shri Maru Ram is as good a member of the Managing Committee as any one else and as such as member is entitled to act on any sub committee formed by the Managing Committee and even perhaps more in this case because to give you a fair trial, it was necessary to have a teachers ' union 's representative on the Enquiry Committee.
Shri Maru Ram represented the Union of the staff of the school and is thus your own representative as such.
" 868 There is no dispute to the fact that the said Shri Maru Ram himself deposed in the enquiry proceeding in support of Charge No. 12 against the appellant and he also participated as one of the members of the Enquiry Committee.
Tile Enquiry Committee found the appellant guilty on some of the charges including the said charge No. 12.
The Managing Committee proposed to dismiss the appellant from service.
It is not disputed that the disciplinary proceeding against the petitioner is to be carried out in accordance with the provisions of the Punjab Aided (Schools Security of Service) Act, 1969.
Sub Section (2) of Section 3 of the said Act is set out hereunder: "No order of dismissal or removal or reduction in rank of an employee shall take effect unless it has been confirmed by the Deputy Commissioner who may refuse to do so, if in his opinion the provisions of Sub section (1) have not been complied with." In view of such provision in the aforesaid Act, the report of the Managing Committee and the proposal for dismissal of the appellant from service were sent for confirmation by the Deputy Commissioner.
The appellant being informed of the decision of the Managing Committee to dismiss him from service subject to the confirmation by the Deputy Commissioner, Hoshiarpur, made an application to the President of the Managing Committee for the inspection of the stipend register and the office file of the case of December 29, 1970 ' so that he could make a proper representation to the Deputy Commissioner of Hoshiarpur.
The Managing Committee.
however, did not give inspection to the appellant of the said records but the original application made by the appellant to the President of the Managing Committee was not entertained but then and there returned with the remarks "under what rules do you wish to see the file please.
Sd/ R.D. Sharma 29.12. 1970.
" The appellant there after submitted his representation to the Deputy Commissioner against the proposed order of dismissal of the appellant and it was urged by the appellant that the Managing Committee acted in a prejudicial manner and had been trying to urge his dismissal on unfounded grounds.
By order dated March 18,1971, the Deputy Commissioner rejected the representation of the appellant.
The appellant thereafter preferred an appeal against the order of con on by the Deputy Commissioner under Sub section (5) of Section 3 of the said Act to the Commissioner, Jullundur Division but such appeal was also dismissed by the Commissioner on December 3, 1973.
The appellant thereafter moved a Writ 869 Petition in the High Court of Punjab and Haryana being Civil Writ Petition No. II 21 of 1974 inter alia praying for qushing the enquiry report and the orders passed by the Managing Committee, Deputy Commissioner, Hoshiarpur and the Commissioner, Jullundur Division.
The Managing Committee contested the said Writ Petition by entering appearance though Paras Ram, Local Manager cumVice President of the Managing Committee and the counter affidavit was also filed to the Writ Petition.
The Managing Committee disputed the contention of the appellant that the enquiry committee was biased, partial and inimical towards the appellant and Shri Maru Ram, a member of the staff with whom the appellant was not on good terms and who was the root cause of the trouble became the member of the enquiry committee and after his inclusion the enquiry was summed up in a slip shed manner.
In the counter affidavit it was contended on behalf of the Managing Committee that in the Managing Committee members of the staff are required to be taken.
Two members from teaching staff were taken on the Managing Committee and the appellant Principal was one of the members and the other member was the said Shri Maru Ram.
As the appellant himself was the accused, the only member who could be taken in the enquiry committee was the other representative of the teachers union, Shri Maru Ram.
It was further stated that the appellant had raised objection before the Committee against his inclusion in the enquiry committee but such objection was not entertained, and it was stated that the enquiry committee was neither partial nor inimical towards the appellant and the enquiry committee was comprised of three members including the President Shri B.B. Kashyap and the said Shri Maru Ram, teachers representative in the Managing Commiittee.
In the counter affidavit, it was further stated that the appellant had applied for inspection of the stipend register but such demand of inspection was made after the appellant was dismissed.
Even then, the inspection was not denied and the appellant had been asked to indicate under what rules he could see the file.
At this stage, it may be indicated that when the appellant had asked for inspection, there was no question of the appellant being dismissed because under the said Act the proposed order of dismissal cannot take effect until such proposal is confirmed by the Deputy Commissioner.
The appellant asked for inspection of the register to make effective representation before the Deputy Commissioner.
But such inspection was not given and the application itself was returned then and there apparently on the ground of absence of any specific rule for such inspection.
A Single Bench of the Punjab and Haryana High Court allowed the Writ Petition on the ground that the departmental proceeding was vitiated for the flagrant violation of the principle of natural justice.
The learned Judge indicated that Charge No. 12 was sought to be proved by Shri Maru Ram himself who appeared as a witness before the enquiry committee although he was one of the 870 members of the enquiry committee.
Since one of the members of the Managing Committee acted both as a Judge and as a witness to prove one of the charges against the appellant despite the objections made by the appellant against the inclusion of such member in the Committee, the entire enquiry proceeding was vitiated.
The learned Judge further held that the contention of the respondents that the bias of Shri Maru Ram, even if any, should be restricted only to charge No. 12 and as such the order of dismissal also on the basis of other charges should not be set aside, could not be accepted.
The learned Judge was of the view that since Shri Maru Ram conducted the enquiry with bias, the said bias continued and percolated to the entire proceeding and such bias therefore should not be restricted to charge No. 12 only.
The learned Judge also rejected the contention of the respondents that as the appellant did not raise the plea of bias on the part of Shri Maru Ram before the Deputy Commissioner or the Commissioner specifically, the appellant should not be allowed to raise the question of bias.
The learned Judge held inter alia that it was evident from the enquiry proceeding and the report of the enquiry committee that the said Shri Maru Ram was member of the enquiry committee and had also deposed as a witness in the enquiry proceeding.
Since such report was required to be considered by the Deputy Commissioner for the purpose of affirming, the proposed order of dismissal, the said fact of bias and prejudice was required to be considered and the appellant was not debarred from raising such vital plea of bias in the Writ proceeding.
The learned Judge was of the view that in the facts and circumstances of the case, the decision of the Managing Committee and the orders passed by the Deputy Commissioner and the Commissioner on the basis of an illegal and biased enquiry against the petitioner could not he sustained.
The learned Judge therefore, allowed the said petition, set aside the proposed order of dismissal and the order of confirmation passed by the Deputy Commissioner and the appellate order passed by the Commissioner and directed the Deputy Commissioner to decide the reference made by the Managing Committee for confirmation of the proposed order of dismissal passed by the Deputy Commissioner in the light of the observations made in the judgment.
The Managing Committee being aggrieved by the said decision of the learned Single Judge of the Punjab and Haryana High Court preferred an appeal before a Division Bench of punjab and Haryana High Court being L.P.A. No. 1427 of 1992.
The Division Bench, however, held that it had not been brought on record as to what objection was taken and in what form against Shri Maru Ram who was a member of the enquiry committee.
The Division Bench, however, noted the order passed by the Managing Committee rejecting the objection of inclusion of Shri Maru Ram in the Managing Committee by quoting the order passed by the enquiry committee.
The Division Bench was of the view that the plea of bias could be waived and if the appellant felt that the enquiry proceeding was vitiated by the 871 reason of bias because of inclusion of Shri Maru Ram, he could have raised specific plea of bias before the Deputy Commissioner and Commissioner.
Since such specific plea was not raised before the Deputy Commissioner and Commissioner, the appellant should not be allowed to raise such contention in the Writ Petition.
The Division Bench also held that the plea of bias of Shri Maru Ram as indicated in the Writ Petition was also very vague.
The Division Bench further held that the Deputy Commissioner gave opportunity to the appellant to meet certain charges and he was not influenced by Charge No. 12 only in respect of which the said Shri Maru Ram appeared as witness.
As it appeared from the order that the Deputy Commissioner was impressed with some other char ges for which the order of dismissal could be confirmed, no interference was called for against the impugned order.
The Division Bench, therefore, allowed the appeal and dismissed the Writ Petition.
As aforesaid, the appeal is directed against the said impugned judgment of ,he Division Bench in L.P.A. No. 1427 of 1982 dismissing the Writ Petition.
In terms of the notice issued on the special leave application the short question as to why the enquiry and the order passed therein should not be set aside and a fresh enquiry should not be ordered on the ground that one of the participants of the Committee was biased, is required to be considered in this appeal.
In Administrative Law, Rules of natural justice are foundational and fundamental concepts and law is now well settled that the principles of natural justice are part of the legal and judicial procedures.
On the question whether the principles ofnatural justice are also applicable to the administrative bodies, formerly, the law courts in En land and India had taken a different view.
It was held in Franklin vs Minister of Town and Country Planning ; that the duty imposed on the minister was merely adn Anistrative and not being judical or quasijudicial, the principle of natural justice as applicable to the judicial or quasi judicial authorities was not applicable and the only question which was required to be considered was whether the Minister had complied with the direction or not.
Such view was also taken by the Indian courts and reference may be made to the decision of this Court in Kishan Chand Arora vs Commissioner of police, Calcutta ; It was held that the compulsion of hearing before passing the order implied in the maxim audi alteram pertem applied only to judicial or quasi judicial proceedings.
Later on, the law courts in England and also in India including this Court have specifically held that the principle of natural justice is applicable also in administrative proceedings.
In Breen vs Amal ganaled Engineering Union Lord Denning emphasised that Statutory body is required to act fairly in function whether administrative or judicial or quasi judical Lord 872 morris observed (as noted by this Court in Maneka Gandhi 's decision that.
"We can think, take pride in what has been done in recent periods and particularly in the field of administrative law by invoking and by applying these principles which we broadly classify under the designation of natural justice.
Many testing problems as to their application yet remain to be solved.
But I affirm that the area of administrative action is but one area in which the principles are to be deployed.
" It may be indicated herein that the aforesaid observation was quoted with approval by this Court in the decision in Maneka Gandhi vs Union of India 1.
In State of Orissa vs BinapaniDei ; , this Court also accepted the application of the principle of natural justice in the order which is administrative in character.
It was observed by Shah,J. : "It is true that the order is administrative in character, but even an administrative order which involves civil consequences. must be made consistently with the rules of natural justice." Similar view was also taken in A.K. Kraipak vs Union of India & Ors.
and the observation of Justice Hedge may be referred to "Till very recently it was the opinion of the courts that unless the authority concerned was required by the law under which it functioned to act judicially.
there was no room for the application ofthe rules of natural justice.
The validity of that limitation is now questioned.
If the purpose ofthe rules of natural justice is to prevent miscarriage of justice, one fails to see why those rules should be made inapplicable to administrative enquiries.
" There are number of decisions where application of principle of natural justice in the decision making process of the administrative body having civil consequence has been upheld by this Court but it is not necessary to refer to all such decisions.
Prof Wade in his Administrative Law, (1988) at page 503, has very aptly observed that the principles of natural justice are applicable to almost the whole range of administrative powers.
Since the rules of natural justice were not emodied rules it is not possible and 873 practicable to precisely define the parameter of natural justice.
In Russel vs Duke of Norfold 19491 1 All ER 109 Tucker, L.J. observed: "There are, in my view no words which are of universal application to every kind of inquiry and the every kind of domestic tribunal.
The requirements of natural justice must depend on the circumstances of the case, the nature of the inquiry, the rules under which the tribunal is acting, the subject matter that is being dealt with, and so forth.
" It has been observed by this Court in Union of India vs P.K. Roy. ; that "The extent and application of the doctrine of natural justice cannot be imprisoned within the strait jacket of a rigid formula.
The application of the doctrine depends upon the nature of the jurisdiction conferred on the administrative authority, upon the character of the rights of the persons affected, the scheme and policy of the statute and other relevant circumstances disclosed in the particular case.
" Similar view was also expressed in A.K Kraidak 's case (ibid).
This Court observed: "What particular rule of natural justice should apply to a given case must depend to a great extent on the facts and circumstances of that case, the framework of the law under which the enquiry is held and the constitution of the Tribunal or body of persons appointed for that purpose.
Whenever a complaint is made before a court that some principle of natural justice had been contravened, the court has to decide whether the observance of that rule was necessary for a just decision on the facts of that case.
" Prof. Wade in his Administrative Law has succinctly summarised the principle of natural justice to the following effect: "It is not possible to lay down rigid rules as to when the principles of natural justice are to apply: not as to their scope and extent.
Everything depends on the subject matter, the application for principles of natural justice, resting as it does upon statutory 874 implication, must always be in conformity with the scheme of the Act and with the subject matter of the case.
In the application of the concept of fair play there must be real flexibility.
There must also have been some real prejudice to the complainant: there is no such thing as a merely technical infringement of natural justice.
The requirements of natural justice depend on the facts and the circumstances of the case, the nature of the enquiry, the rules under which the tribunal is acting, the subject matter to be dealt with, and so forth.
" One of the cardinal principles of natural justice is : Nemo debetesse judex in propria causa (No man shall be a judge in his own cause).
The deciding authority must be impartial and without bias, It has been held by this Court in Secretary to Government Transport Department vs Munuswamy ; that a predisposition to decide for or against one party without proper regard to the true merits of the dispute is bias.
Personal bias is one of the three major limbs of bias namely pecuniary bias, personal bias and official bias.
A classic case of personal bias was revealed in the decision of this Court in state of U.P. vs Mohd. Nooh In the said case, a departmental enquiry was held against an employee.
One of the witnesses against the employee turned hostile.
The officer holding the enquiry then left the enquiry, gave evidence against the employee and there after resumed to complete the enquiry and passed the order of dismissal.
This Court quashed the order of dismissal by holding inter alia that the rules of natural justice were grievously violated.
In the instant case, Charge No. 12 states that a particular sum on account of amalgamated fund for the month of December was given to the appellant by Shri Maru Ram who was teacher incharge of the amalgamated fund.
In the enquiry committee comprising of the three members, the said Shri Maru Ram was taken as one of the members and he himself deposed to establish the said Charge No. 12 and thereafter again joined the enquiry committee and submitted a report holding the appellant guilty of some of the charges including the said Charge No. 12.
Shri Maru Ram was interested in establishing the said charge.
From the charge itself, it is apparent that he had a predisposition to decide against the appellant.
It is really unfortunate that although the appellant raised an objection before the enquiry committee by clearly indicating that the said Shri Maru Ram was inimical towards him and he should not be a member in the enquiry committee, such objection was rejected on a very flimsy ground, namely, that since the said Shri Maru Ram was one of the members of the Managing Committee and was the representative of the teachers in the Managing Committee it was necessary to include him in the enquiry 875 committee.
It is quite apparent that the enquiry committee could have been constituted with other members of the Managing Committee and the rules of the enquiry are not such that Shri Maru Ram being teacher 's representative was required to be included in the said enquiry committee so that the doctrine of necessity maybe attracted.
If a person has a pecuniary interest, such interest, ever it very small, disqualifies such person.
For appreciating a case of personal bias or bias to the subject matter the test is whether there was a real likelihood of a bias even though such bias has not in fact taken place.
De Smith in his Judicial Review of Administrative Action, (1980) at pace 262 has observed that real likelihood of bias means at least substantial possibility of bias.
In R.v.
Sunderland Justices (373) it has been held that the Court will have to judge the matter as a reasonable man would judge of any matter in the conduct of his own business.
In R versus Sussex Justices (259) it has been indicated that answer to the question whether there was a real likelihood of bias depends not upon what actually was done but upon what might appear to be done.
In Halsbury Laws of England, (4th Edn.) Vol.2, para 551, it has been indicated that the test of bias is whether a reasonable intelligent man, fully apprised of all the circumstances, would feel a serious apprehension of bias.
The same principle has also been accepted by this Court in Manak Lal vs Dr. Prem Chand ; This Court has laid down that the test is not whether in fact, a bias has affected the judgment; the test always is and must be whether a litigant could reasonably apprehend that a bias attributable to a member of the tribunal might have operated against him in the final decision of the tribunal.
It is in this sense that it is often said that justice must not only be done but must also appear to be done.
In the facts of the case, there was not only a reasonable apprehension in the mind of the appellant about the bias of one of the members of the enquiry committee, namely, the said Shri Maru Ram but such apprehension became real when the said Shri Maru Ram appeared as a witness against the appellant to prove the said charge and thereafter proceeded with the enquiry proceeding as a member of the enquiry committee to uphold the correctness of his deposition as a Judge.
The learned Single Judge considering the aforesaid facts came to the finding that the participation of Shri Maru Ram as a member of the enquiry committee has vitiated the enquiry proceeding because of flagrant violation of the principles of natural justice.
Unfortunately, the Division Bench set aside such judgment of the learned Single Judge and dismissed the Writ Petition improperly, to say the least, on a technical ground that plea of bias of Shri Maru Ram and his acting as a Judge of his own case by being a member of the enquiry committee was not specifically taken before the Deputy commissioner and also before the appellate authority, namely, the Commissioner by the appellant and as such the said plea should not be allowed to be raised in writ proceeding, more so, when the case of prejudice on 876 account of bias could be waived by the person suffering such prejudice.
General] v, a point not raised before be tribunal or administrative authorities may not be allowed to be raised for the first time in the writ proceeding more so when the interference in the writ jurisdiction which is equitable and discretionary is not of course or must as indicated by this Court in A.M. Allison versus State of Assam; , particularly when the plea sought to be raised for the first time in a Writ proceeding requires investigation of facts.
But if the plea though not specifically raised before the subordinate tribunals or the administrative and quasi judicial bodies, is raised before the High Court in the writ proceeding for the first time and the plea goes to the root of the question and is based on admitted and uncontroverted facts and does not require any further investigation into a question of fact, the High Court is not only justified in entertaining the plea but in the anxiety to do justice which is the paramount consideration of the Court, it is only desirable that litigant should not be shut out fromraising such plea which goes to the root of the lis involved.
The aforesaid view has been taken by this Court in a number of decisions and a reference may be made to the decisions in A.S. Arunachalam Pillai vs M/s. Southern Roadways Ltd. and another , The Cantonment Board, Ambala vs Pyarelal In our view, the learned Single Judge has very rightly held that the Deputy Commissioner was under an obligation to consider the correctness and propriety ofthe decision of the Managing Committee based on the report of the enquiry committee which since made available to him, showed on the face of it that Shri Ramu Ram was included and retained in the enquiry committee despite objection of the appellant and the said Shri Maru Ram became a witness against the appellant to prove one of the charges.
It is really unfortunate that the Division Bench set aside the decision of the learned Single Bench by taking recourse to technicalities that the plea of bias on account of inclusion of Shri Maru Ram in the enquiry committee and his giving evidence on behalf of the department had not been specifically taken by the appellant before the Deputy Commissioner and the Commissioner.
The Division Bench has also proceeded on the footing that as even apart from Charge No. 12, the Deputy Commissioner has also considered the other charges on consideration of which along with Charge No. 12, the proposed order ofdismissal was made, no prejudice has been caused to the appellant.
Such view, to say the least, cannot be accepted in the facts and circumstances of the case.
The learned Single Judge, in our view, has rightly held that the bias of Shri Maru Ram, one of the members of the enquiry commttee had percolated throughout the enquiry proceeding thereby vitiating the principles of natural justice and the findings made by the enquiry committee was the product of a biased and prejudiced mind.
The illegality committed in conducting the departmental proceedings has left an indelible stamp of infirmity on the decision of the Managing Committee since affirmed by the Deputy Commissioner and the Commissioner.
The observatiory of S.R. Das, C.J. 877 in Mohd nooh 's case (ibid) may be referred to in this connection: "Where the error, irregularity or illegality touching jurisdiction or procedure committed by an inferior court or tribunal of first instance is so patent and loudly obstrusive that it leaves on its decision an indelible stamp of infirmity or vice which cannot be obliterated or cured on appeal or revision.
If an inferior court or tribunal of first instance acts wholly without jurisdiction or patently in excess of jurisdiction or manifestly conducts the proceedings before it in a manner which is contrary to the rules of natural justice and all accepted rules of procedure and which offends the superior court 's sense of fair play, the superior court may, we think, quite properly exercise its power to issue the prerogative writ of certiorari to correct the error of the court or tribunal of first instance, even if an appeal to another inferior court or tribunal was available and recourse was not had to it or if recourse was had to it, it confirmed what ex facie was a nullity for reasons aforementioned.
" We have, therefore, no hesitation in allowing the appeal by setting aside the impugned judgment of the Division Bench of Punjab and Haryana High Court and the order of dismissal of the appellant passed by the Managing Committee of the School confirmed by the Deputy Commissioner and affirmed in appeal by the Commissioner.
This decision, however, will not preclude the Managing Committee.
however, from proceeding a fresh with the departmental proceedings from the stage of issuance of charge sheet.
It is, however, made clear that if a fresh enquiry proceeding is initiated it should be ensured that the enquiry committee is not composed with any of the members of the previous enquiry committee and such proceeding should be completed within a period of four months from today.
In the special facts of the case and in view of the financial difficulties pleaded by the respondent we do not think that it will be proper to compel the management to pay full back wages.
The school authorities and other concerned authorities are directed to pay one fourth of the salary to the appellant from the date of dismissal till today and thereafter go on paying the salary with such increments which the appellant would have been entitled to in the absence of initiation of the departmental proceeding.
Considering the facts of the case, we allow this appeal with costs against the appearing respondents.

summary:
The appellant, appointed Principal of Dr. Hari Ram (Co education) Higher Secondary School, was placed under suspension and a charge sheet containing 12 charges issued to him.
Charge No. 12 accused him of use of an unaccounted sum of Rs. 129.37, given to him by Maru Ram, teacher in charge of amalgamated fund.
The enquiry committee constituted comprised 3 members, of which the said Maru Ram was a member.
Maru Ram deposed as a witness for the administration in support of charge No. 12.
The appellant 's objection to the inclusion of Maru Ram on the enquiry committee was overruled, and he was found guilty of some of the charges including the said charge and the Managing Committee proposed to dismiss him from service.
The appellant 's application for inspection of documents to enable him to make his representation before the Deputy Commissioner the confirming authority under S.3(2) of the Punjab Aided Schools (Security of Service) Act, 1969 was rejected by the Managing Committee, the Deputy Commissioner and the Commissioner.
The appellant then filed a writ petition in the High Court for quashing the enquiry report and the orders passed by the Managing Committee, the Deputy Commissioner and the Commissioner.
The Managing Committee, opposing the petition, contended that the enquiry committee was not partial or inimical towards the appellant.
It was 864 contended that maru Ram was the only teacher member of the Managing Committee other than the appellant himself , therefore only Maru Ram could be taken in the enquiry committee as a representative of the teachers ' union.
It was further contended that though the application for inspection had been made after his dismissal, he had not been refused permission for inspection; he had been asked to indicate the rules under which he could see the file.
A Single Judge of the Punjab and Haryana High Court allowed the petition on the ground that the departmental proceeding was vitiated by the flagrant violation of natural justice.
Since one of the members of the Managing Committee acted both as a Judge and as a witness to prove one of the charges against the appellant despite the objections made by the appellant against the inclusion of such member in the committee, the entire enquiry proceeding was vitiated.
He held that the bias continued and percolated to the entire proceeding and should not be restricted to charge no. 12.
Since the enquiry report was required to be considered by the Deputy Commissioner for the purpose of affirming the proposed order of dismissal, the fact of bias and prejudice was required to be considered and the appellant was not debarred from raising such vital plea of bias in the writ proceeding.
The decision arrived at on the basis of an illegal and biased enquiry could not be sustained.
On appeal, the Division Bench reserved the order of the Single Judge.
It held that the plea of bias was vague; that the appellant had waived it by not raising it specifically before the Deputy Commissioner and Commissioner, and that as the Deputy Commissioner was not influenced by charge no.12 only but was impressed with some other charge, no interference with the impugned order was called for.
Allowing the appeal, this Court, HELD: 1.
In Administrative Law, Rules of natural justice are foundational and fundamental concepts and the law is now well settled that the principles of natural justice are part of the legal and judicial procedures.
(871 E) Franklin vs Minister of Town and Country Planning ; Kishan Chand Arora vs Commissioner of Police, Calcutta ; ; Breen vs Amalgamated Engineering Union ; Maneka Gandhi vs Union of India [1978] 2 SCR 621; State of Orissa vs Bina pani Dei and A.K.Kraipak vs Union of India & Ors.[1970] 1 SCR 457, 865 referred to.
2.Since the rules of natural justice are not embodied rules, it is not possible and practicable to precisely define the parameters of natural justice.
(872 H) Russel vs
Duke of Norfolk [1949] ALL ER109; Union of India vs P.K. Roy ; ; A.K.Kraipak vs Union of India and Prof. Wade.
Administrative Law, edn 1988 p. 503 referred to.
3.One of the cardinal principles of natural justice is: Nemo debet esse judex in propria causa: No man shall be a judge in his own cause.
The deciding authority must be impartial and without bias.
(874 C) Secretary tit Government Transport Department vs Munuswamy ; and State of U.P. vs Mohd. Nooh ; , referred to.
(874 C) For appreciating a case of personal bias, the test is whether there was a real likelihood of a bias even though such bias has not in fact taken place.
De Smith, Judicial Review of Administrative Action [1980] p. 269 R Sunderlal Justices at 373; R. vs Sussex Justices at 259; Halsbury 's Laws of England (4th Edn.) Vol.2, para 551 and Manak Lal vs Dr. Prem Chand ; , referred to.
It is in this sense that it is often said that justice must not only be done but must also appear to be done.
(875 E) 4.In the facts of this case, there was not only a reasonable apprehension of bias (if one of the members of the enquiry committee, but such apprehension became real when Maru Ram appeared as a witness against the appellant, and.
thereafter proceeded with the enquiry proceeding as a member of the enquiry committee to uphold the correctness of his deposition as a Judge.
(875 F) 5.The Division Bench dismissed the writ petition improperly on a technical ground that the plea of bias could not be raised in a writ proceeding especially when it was not specifically taken before the Deputy Commissioner and the Commissioner; more so when this defence could be waived by the person suffering the prejudice.
(876 E) 866 Generally a point not raised before the tribunal or administrative authorities may not be allowed to be raised for the first time in writ proceedings.
Which is equitable and discretionary and interference is not a matter of course particularly when the plea sought to be raised for the first time in a writ proceedings requires investigation of facts.
(876 A) A.M. Allison vs State of Assam.
, ; , referred to.
But if the plea goes to the root of the question and is based on admitted and uncontroverted facts and does not require any further investigation into a question of fact, it is only desirable that a litigant should not he shut out from raising such plea.
(pp. 19 20) (876 C) A.S. Arunachalam Pillai vs M/s. Southern Roadways Ltd. ; and The Cantonment Board vs Pyarelal ; , referred to.
6.The bias of Shri Maru Ram, one of the members of the enquiry committee had percolated throughout the enquiry proceeding thereby vitiating the principles of natural justice and the findings made by the enquiry committee was the product of a biased and prejudiced mind.
The illegality committed in conducting the departmental proceedings has left an indelible stamp of infirmity on the decision of the Managing Committee since affirmed by the Deputy Commissioner and the Commissioner.
(876 G) State of U.P. vs Mohd. Nooh.
; , relied on.


judgement:
Appeal No. 2221 of 1993.
From the Judgment and Order dated.5.5.
1993 of the Madhya ' Pradesh High Court in M.P. No. 4420 of 1991.
Harish N. Salve and L.R. Singh for the Appellant.
Anoop Choudhary, A.K. Sanghi, S.V. Deshpande and section K. Agnihotri for the Respondents.
The Judgment of the Court was delivered by Mohan, J.
Leave granted in SLP filed by Indian Medical Council, Jabalpur.
All these appeals are dealt with under a common judgment since they arise out of the same judgment passed in Misc.
Petition No.4420 of 1991 by the Madhya Pradesh High Court, Jabalpur Bench.
One Dr.
Nelson ,father of respondent1 was serving in Madhya Pradesh State Public Health in the Department of Surgery in the Medical College at Jabalpur.
His wife, Dr. (Mrs.) Shobha Nelson was also working as a Lecturer in the Department of Obstetrics and Gynecology in Medical College in a purely temporary capacity.
Nelson applied for foreign assignment.
He was selected for the same.
Therefore.
a request was made by the Government of India (Department of Personnel and Administrative Reforms) vide its letter dated 2nd of January.
1975 790 requesting the State Government to spare the services of Dr .
S.K. Nelson for foreign assignment with Zanzibar Government.
The Under Secretary to the Government of Madhya Pradesh, Department of Public Health and Family Planning replied on 15.4.1975 that it was not possible for the State Government to spare his services.
However, Dr. Nelson proceeded on two months ' vacation with effect from 1.5.75.He wrote a letter to the Dean of Medical College Jabalpur that he was proceeding, on long leave owing, to unavoidable family circumstances.
Even after the expiry of the period of leave he did not rejoin the post.
His request for further extension of leave was rejected.
Notwithstanding the same Dr. Nelson and his wife proceeded to Tanzania and the first respondent, Silas Nelson, also accompanied them.
It also requires to be mentioned in passing that a request was made to the Government of madhya Pradesh to spare the services of Dr. Shobha Nelson.
It was pointed out by tile State Government that she being ;A temporary servant she had no lien and she will have to resign the State service before joining her duties in Zanzibar.
She also absented unauthorisedly and proceeded to Tanzania along with her husband.
The first respondent claimed to have passed G.C.E. 'O ' level as well as 'A ' level examinations from the University of London conducted by the Education Council of the Government at Dar es Salam in Tanzania.
He also claimed that he had obtained credits in 'A ' level in three subjects i.e. Biology, Physics and Chemistry and 'O ' level in six subjects i.e. Biology, Chemistry, English language.
English Literature, Mathematics and Physics.
On this basis he claimed that he was entitled to admission in any Medical College in India.
According to him these examinations are considered to be equivalent qualifying examinations and pre requisite for admission to any Medical College.
It was also stated that Rani Durgawati University of Jabalpur had given an equivalence certificate.
He obtained admission in Muhmbili Medical College in the Faculty of Medicine.
which is affiliated to the University of Dar es Salam, in the year 1989.
lie had completed one year at the same college and University.
Thereafter he was pursuing his study in the second year.
Having regard to the fact that he had studied the subjects in Anatomy, Physiology, Biochemistry, Preventive and Social Medicine including, Behavioural Science and Biostatistics, Medical Psychology and Developmental Studies and Medical Surgery, he had undergone a wider course.
Therefore, according to him, he possesses the eligibility criteria for admission to the MBBS Degree Course at Jabalpur.
A request was made by the father of the first respondent to nominate the first respondent to MBBS Course directly under Central Government quota.
This request related not only to the first respondent but also his sister.
However, the Central Government advised Dr. Nelson to approach the Medical Council oflndia 791 and the concerned University in jabalpur seeking their concurrence to the migration of his two children from the University of Dar es Salam.
Tanzania to Medical College in jabalpur.
On 20th December, 1989, Dr. nelson approached the appellant, Medical Council of India (hereinafter referred to as the Council) for grant of no objection to the transfer.
This request was turned down on 12.1.90 as migration was not permissible under the Rules.
The position was further made clear by the letter of the appellant dated 28.12.90.
Aggrieved by this the first respondent and his sister Kumari Divya Nelson filed Writ Petition Misc.
Petition No. 2535 of 1990 before the Madhya pradesh high Court at Jabalpur.
The prayer was for a writ of mandamus to direct the respondents to grant admission to them to the 2nd year of MBBS Degree Course at Medical College jabalpur.
It was contended that the Council had not authority to object or refuse the issue of no objection certificate since its primary function is to prescribe minimum standards of medical education.
It is the University alone which should be concerned about the admission.
The High Court by its judgment dated 12.7.91 allowed the writ petition.
It directed the appellant and other authorities to consider the case of respondent 1 and his sister within a period of two months for their admission in the Medical College, jabalpur in the light of clause 'E ' of the mandatory recommendations approved under Section 33 of the .
It was also held that though the Council had considered the case of the candidates yet it had not looked into the individual merits regarding their eligibility for transfer to Medical College,jabalpur which affiliated to Rani Durgawati Vishwa vidyalaya, jabalpur.
Besides teh impugned letter of the council does not show any application of mind as it is not speaking order.
In complete with the above directions the Executive Committee of the appellant (Council) reconsidered the case on 20.8.91.
The question was whether the migration of the respondent on individual merit to Medical College.
jabalpur under clause v 'e ' of the Migration Rules was permissible.
It was concluded that the migration could not be allowed since the ground were not sufficient for such migration.
It was also of the view that the facts stated for considering the individual case on merits were not relevant.
What is important to be considered is the course of study the student had already undergone vis a vis the course being taught in the Medical College in Which the migration is sought.
The candidate had not also finished enough materials to make comparison with 792 the course of study conducted in medical College at jabalpur.
For these reasons the request for migration was rejected.
The same was reiterated by a letter dated 4.1.92.
After this, a review petition was filed to recall the order dated 12.7.91 of the High Court.
However the review petition was dismissed by the High Court.
An application for contempt was also dismissed.
There upon Misc, Petition No. 4420 of 1991 came to be filed seeking admission in the 2nd year or the 1st professional M.B.B.S. Course at Medical College, Jabalpur on the same grounds as were alleged previously.
direction was issued on 23.12.1991 to give provisional admission.
After admission of the writ petition the same order was continued.
Though an application was preferred by the respondents 2 to 4 to have the order vacated on the ground that migration from an unrecognized Medical College to a recognised Medical College was not permissible, the same was dismissed.
Some interesting development took place during this stage.
The candidates did not produce the required document.
Hence provisional admission was not granted to them by the respondents 2 to 4.
That led to the filing of Interlocutory Application No. 2805 of 1992 for further direction.
Respondents 2 to 4 also filed an application for direction on 26.3.92 inter alia pointing out that before grant of provisional admission, the writ petitioners were required to submit proof of their having passed 1st year course at Tanzania.
In the absence of such proof the admission was impossible.
Further in which year of the MBBS course the first respondent was to be admitted, was not free from difficulty.
it was averred that even without passing the first year from the university of Dar es Salam the claim is made for admission to the second year.
This is nothing but fraud the High Court strangely permitted the writ petitioner.
Kumari Divya Nelson to withdraw herself from the petition and it directed respondent 1 alone could prosecute his studies.
The authorities were directed to grant provisional admission his filing necessary forms and depositing admission fees without insisting on the production of any other certificate or testimonials or syllabus of Dar es Salam University.
For non compliance with this direction a contempt application was taken but by the first respondent.
On peril of contempt the Dean (Respondent 4) had not other option but to comply with the order of provisional admission.
Against this order directing provisional admission without insisting on the production of any other documents SLP (C) No. 10498 of 1992 was preferred.
Leave was granted on 7.9.92 by this court staying the operation of the order dated 18.5.92 of the High Court.
This Court directed that the interim order well subsist 793 till the disposal of the writ petition before the High Court and requested the High Court to dispose of the writ petition of the respondent I expeditiously.
By the impugned judgment dated 5th March, 1993 the writ petition was allowed The resolution dated 20th August, 1991 refusing to accede to the request of the writ petitioner respondent (1) for migration was quashed holding that there was no application of mind by the Council.
lt is under these circumstances these appeals by special leave to appeal have come to be preferred.
Mr. harish N. Salve, learned counsel for the appellant would submit the following grounds attacking the impugned judgment: The High court erred in directing admission to respondent I in recognised medical college in India from an unrecognized college by way of migration/ transfer.
WI the more so.
when such impermissibility has been recognised by this Court in Medical Council of India, New Delhi vs Rajendra section Sankpal and Ors.
(C. A Nos. 3 4 of 1991 dated 21.10.92) and order dated 6.12.1990 of this Court passed in Medical Council of India vs Ms. Sunita Anant Chavan & Ors.
(I.A. Nos. 2 7 in Transfer Petition (Civil) Nos. 230 235 of 1989).
The High Court misread Regulation V. Under that Regulation migration is allowed from a recognised medical college to another recognised college and that too within three moths after passing of the first professional examination.
In so far as the first respondent has neither undergone study in a medical college recognised by the Council nor has he passed the first professional examination, he could not he admitted to the second year.
The first respondent failed in the subject of Anatomy which is one of the papers taught in the first year at Dar es Salam University.
Under the Examination Regulation of the said University he was required to sit in the supplementary examination in the failed subject before the beginning of the next academic year.
Thus he was required to clear the said paper within six weeks.
Should he fails in the supplementary examination he ceases to be a student of the College/University.
In so far as the first respondent did not take the supplementary examination he ceased to be a student of Dar es Salam University.
Therefore, the question of migration could not arise at all.
The first yen course of Dar es SalamlJniversitv is not equivalent to the first phase of MBBS Examination in India.
794 Equivalence has to be decided by only an expert body, that too, on technical and academic matters.
It is not in the domain of assessment or evaluation by the Court.
The High Court should not have embarked on the determination of equivalence on the basis of sketchy materials placed before it.
The High Court erred in relying on.
Minakshi Malik, vs University of Delhi; , There, the candidate was not, in any matter, ineligible while here, the first respondent is ineligible.
The High Court erred overlooking that an administrative authority like the appellant is not required to pass reasoned orders.
The decree awarded by Dar es Salam University is not recognised and :Is not included under any of the Schedules of the Medical Council of India Act, 1956.
Therefore, there was no occasion for the appellant to decide the equivalence.
Should the first respondent be anxious he should have placed all the materials.
In opposition to this, learned counsel for the respondents, argues that the Council has taken a self contradictory stand.
In one breath, it will contend that there are no materials to decide the equivalence and in the other breath it would say it is not equivalence.
Under these circumstances, in view of the cryptic order passed, the High Court itself decided finding that the Council had not applied its mind.
The High Court was satisfied on the basis of documents there is equivalence.
The High Court is well entitled to do so.
More so, having regard to the ruling of Minakshi Malik 's case (supra) Equity also must weigh in favour of the first respondent.
In any event, the first respondent had passed his pre Medical test successfully in the year 199 1.
He also belong s to scheduled tribe.
Therefore, on the basis of these two documents his candidature could be considered for admission to first year MBBS Course for the ensuing academic year of 1993 94 as otherwise, the career of a young man would be completely ruined.
The factual position with regard to study of the first respondent in Dar es Salam University requires to be carefully analysed.
The claim of the first respondent is that he has passed G.C.E. 'O ' level as well as 'A ' level examinations from the University of London conducted by the Education Council of the Government at Dar es Salam in Tanzania.
He claims to have obtained credits in 'A ' level in the following three subjects (i) Biology, (ii) Physics; and 795 (iii) Chemistry In `O ' level he claim.
,; to have obtained credits in the following six subjects (i) Biology, (ii) Chemistry, (iii) English Language, (iv) English Literature, (v) Mathematics; and (vi) Physics On this basis, he claims admission to any Medical College in India as these are considered to be equivalent qualifying examinations and prerequisite for admission to any Medical College.
It is claimed on behalf first respondent at Rani Durgawati University of Jabalpur has given an equivalence certificate.
That is extracted below "With reference to your above cited letter, it is to inform you that students have passed in five subjects at least at the G.C.E. (Ordinary Level) and two subjects at the (Advanced Level) from University of London, are treated as having successfully completed the 12 year Pre University/Higher Secondary in India.
Hence, if your son Shri Silas Supragya Nelson has passed above examination then he may appear in Pre Medical test examination as desired by you." According to first respondent, he was admitted in Muhmbili Medical College in the Faculty of Medicine which is affiliated to the University of Dar es Salam in the year 1989 and has completed one year at the same College and University.
In the First year he had studied subjects in Anatomy, Physiology Biochemistry, Preventive and Social Medicine which includes Behavioural Science and Bio statistics, Medical.
Psychology and Development Studies & Medical Surgery whereas at Rani Durgawati University, the subjects taught in the first year are Anatomy, Physiology, and Biochemistry.
Thus the courses followed at Dar es Salam University are much wider.
It was further claimed that his course in the said Medical College is equivalent to first year course of MBBS Degree awarded by Rani Durgawati University, Jabalpur and, therefore, he possesses the eligibility criteria for admission to the MBBS Degree Course at Jabalpur.
796 On the said basis migration is sought.
Dar es Salam University is not recognised by the Medical Council of India.
Therefore, front all unrecognised institution admission is sought to a recognised institution.
With the object of maintaining and regulating, standards of medical education in the country, the Parliament enacted "the ".
Under Section 6 of the Act.
the Medical Council of ' India has been incorporated, which is a body corporate having a perpetual succession and a common seal Section 12 of the Act makes provisions for recognition of medical qualifications granted by medical institutions in countries with which there is a scheme of reciprocity.
Under this section, the schedules are given providing list of recognised medical institutions & qualifications.
The first schedule gives list of recognised medical qualifications granted by universities/medical institutions in India; whereas schedule second gives the list of recognised medical qualifications granted by medical institutions outside India.
University of Dar es Salam & its medical institution is not included in the second schedule and therefore the qualifications imparted by that institution are not recognised.
That apart, section 14 of the Act makes provisions for recognition of medical qualifications (granted by countries in which there is not scheme of reciprocity.
The Central Government has not considered Dar es Salam University for such recognition.
It was in this context the following order came to be passed by the appellant "The Director, Medical Education, Madhya Pradesh, Bhopal Subject: Migration of Silas Nelson and Divya Nelson from Dar es Salam Medical College, Tanzania to Medical Collage, Jabalpur.
Sir, With reference to your letter No. 6151/DME/IV dated 12.5.1990 I am to state that the matter regarding, Migration of Silas Nelson and Divya Nelson from Dar es Salam Medical College, Tanzania to Medical College,Jabalpur was duly placed before the Executive Committee of this Council at its meeting held on 20th August, 1991 for consideration.
The Committed decided as under: 797 The Executive Committee considered the matter with regard to the migration of the above candidates on individual merit to Medical College Jabalpur under Clause V(e) of the migration rules and did not allow these migration since the grounds are not sufficient for migration and the facts stated in the individual cases are not very relevant for grant of permission for migration.
For considering any such cause of migration, it is important to consider the cause of study the student has already undergone vis a vis the course being taught in the Medical Colleges in which the migration is sought.
Further it is observed that the candidates seeking their migration have also brought no records to show the course of study being conducted at their medical college for making comparison with the study being conducted in Medical College, Jabalpur.
Hence the applications for migration of the above candidates are rejected.
Your faithfully, (Mrs. M. Sachdeva) Off.
Secretary.
" Concerning migration the rule also is to the effect that the same can be allowed by the University concerned within three months after the passing of the first professional examination.
Then, the question of equivalence arises.
The equivalence came to be decided in the following manner: "Reference Letter dated 28.12.1991 of Dy.
Registrar (General) R.D. University, Jabalpur.
Regarding letter of ku.
Divya Nelson and 2/ Silas Nelson to the University.
I have gone through prospectus of University of Dar es Salam (1990 90) For M.D. degree which is equivalent to M.B.B.S. of Universities abroad (as per letter No. H/Q/G.N/17862 dated 2nd May, 1990 of Director of Training and Occupational Health Service, attached in the file).
For examination at the end of first year in Dar es Salam University the subjects are: 798 Anatomy/Histology Behavioural Sciences Only one Biochemistry Year study.
Physiology Development studies Where in Indian Universities the First MBBS Course which is of 18 months the subjects examined are (As premedical Council of India) Anatomy Physiology one and half, Biochemistry Year study As the detailed syllabus of the 5 subjects taught in one year at Dar es Salam University is not given in the Prospectus, it is difficult to know whether the course is equal as only three subjects are taught in Indian University for one and half years indicating that these subjects are taught in more detail here in our University.
However, in general the subjects taught there in first year included Anatomy, Physiology and Biochemistry (along with other two subjects) which are also the subjects of first M.B.B.S. (one and half years course) here also.
For mote clarification, the Medical Council of India may be consulted because they are the main authority in India in this respect.
Dean, Faculty of Medicine of our University was also consulted in this matter/ sd/ Protessor & Head.
Dept. of Biochemistry Medical College & Chairman Board of Studies for Anatomy, Physiology & Biochemistry.
This may be put up before the standing for confirmation.
" We cannot understand when this was the position with reference to equivalence how the High Court had donned the role of an expert body and would say as follows "The petitioner has filed documents showing that Dr. R.K. Gupta, Reader in Pharmacology of the Medical College, Jabalpur was sent on deputation for teaching in the medical college affiliated to Dar es Salam University.
The petitioner, by filing the documents, wants to show that persons having requisite qualifications for teaching in the Medical College, Jabalpur were posted or appointed at the medical college affiliated to Dar es Salam University.
The documents filed by the petitioner show that the subjects taught in the first year M.B.B.S. at Muhibili Medical 799 College, Dar es Salam University and the subjects taught at the Medical College, Jabalpur are the same.
to us the material consideration is the qualifications necessary for admission to the first year M.B.B.S. course.
The documents on record show that the educational qualifications for admission to the Medical College, Jabalpur and the Muhbili Medical College of Dar es Salam University are the same and there is equivalence of courses.
As there is equivalence of courses required for admission to the first year M.B.B.S. courses in Muhibili Medical College and the Medical College, Jabalpur, the petitioner is entitled to be transferred to the first year M.B.B.S. course of the Medical College, Jabalpur and should be permitted to appear in the examination conducted by the Rani Durgawati University, Jabalpur.
" This is totally unwarranted because the High Court does not have the necessary expertise in this regard.
As to the equivalence we have already extracted the opinion of the Chairman of Board of Studies for Anatomy, Physiology and Biochemistry.
From the above extract it is clearly seen that the Council is the main authority in this respect.
Then again, the High Court had gone wrong in concluding that the individual cases are relevant for the grant of permission for migration.
In our considered view, as rightly concluded by the Council, what is material is the course of study which a student has undergone vis a vis the courses being taught in the Medical College in which the migration is sought.
What the Council was endeavouring to point out was the materials placed before it by the present first respondent were not sufficient to decide the equivalence.
The criticism of the Council, by the High Court, is also not warranted.
First of all, no certificate was produced by the first respondent that he had completed the first year course in Dar es Salam.
Unless and until that is done the question of admission to the second year MBBS could not arise.
The first respondent had not appeared in the supplementary examination.
If that is so, according to the Regulations of Dar es Salam University, he is deemed to have discontinued from that Course.
In such a case the question of giving admission to Medical College at Jabalpur could never arise.
Therefore, looked at from any point of view, the Medical Council of India which is the authority to decide the equivalence, has come to the correct conclusion, in that, there cannot be a migration from unrecognised institution to a recognised Medical College.
The judgment of the High Court is wholly unsupportable.
Once we have arrived at this conclusion the question arises whether the case of the first respondent could be considered for the academic year 1993 94 based on his performance in the pre Medical test for the year 1991.
The statement of 800 marks obtained in pre Medical Test, 1991 is as under: "Subjects Max.
Marks Marks Obtained Physics 300 127 Chemistry 300 220 Botany 300 160 Zoology 300 214 English 300 217 1200 721" He also claims that he belongs to Scheduled Tribe.
We do not have material to show as to whether he was granted admission to any Medical College on the basis of his performance in the pre Medical test for the year 199 1.
However, in the petition for special leave to appeal the appellant has made the following averments "In the said Count er affidavit, on oath the respondent no.1 deliberately, knowingly an d willfully made a false statement that he had never appeared in the Pre Medical Test held in the year 1991 and failed.
It was further stated that in fact it was his younger brother Sushrut who had appeared in the T.M.T Examination of 1992.
The petitioner herein has made an inquiry and has come to know that the respondent no.1 appeared in the Pre Medical Test, 1991 vide application No. 27811 and was allotted Roll No. 624227 but failed to qualify and complete in the said test. .
Since the writ petitioner respondent no.1 appeared in the Pre Medical Test, 1991 vide application No. 27811 and was allotted Roll No. 624227 but failed to qualify and complete, he was not at all eligible for admission to the undergraduate medical course in India.
" If this be the correct position, he would not be entitled to be considered for admission for the academic year 1993 94 on the basis of his performance in the Pre Medical test held in the year 199 1.
It is for the concerned authority to verify the factual situation and decide the matter.
801 We make it clear that if his case has already been considered for admission on the basis of performance in the Pre Medical test 1991 and rejected there is no need to consider his case once again for the year 1993 94.
Otherwise, it may be considered on the basis of performance in the pre Medical test for the year 1991 as against the quota intended for Scheduled Tribe, if his status as belonging to Scheduled Tribe is established provided there is no legal impediment in doing so.
Subject to the above directions, civil appeals will stand allowed.
However, there shall be no order as to costs.
I.A. No. 1 of 1993 in SLP (C) 6161 of 1993 is also allowed.
U.P. Appeal allowed.

dataset_name: IN-Abs

summary:
In 1989, respondent 1 and his sister applied for migration from Mumbili Medical College in the Faculty of Medicine, affiliated to the University of Dar es Salam to a recognised medical college in India.
The Medical Council of India turned down this application.
A writ petition was filed in the Court at Jabalpur.
The High Court directed that the appellant and other authorities consider the case of the petitioners.
Thereafter the Executive Committee of the Medical Council reconsidered the case on 20th August, 1991.
It found that the grounds for migration were not sufficient; that it was.
the course of stud already undergone vis a vis that being taught in the medical college in which migration was sought, and not the facts of individual case, which was relevant.
Also the candidate had not furnished enough materials to make the comparison.
The Council therefore rejected the application.
A review petition and contempt petition filed in the High Court were dismissed.
Thereupon, in a miscellaneous petition filed on the same grounds seeking admission in the second year or the 1 year professional MBBS Course at Medical College, Jabalpur the High Court directed that the petitioners be given provisional admission.
The petitioners however, did not produce the required documents and the college did not provisionally admit them.
In an interlocutory application, the High Court permitted one of the petitioners to withdraw herself from the petition and directed that the other petitioner 788 (respondent I before this Court) he granted provisional admission on his filing necessary forms and depositing the fees without insisting ton the Production of any other certificate or testimonials or syllabus (of Dar es Sala in University On fear of contempt, the Dean had to comply with this order.
On an application before it, this Court stayed the interim order and requested the High Court to dispose of the main petition expeditiously.
The High Court allowed the %Tit petition and quashed the resolution dated 20th August, 1991.
refusing migration, holding that there was no application of mind by the Council.
On appeal before this Court, it was contended that the High Court erred in directing admission of respondent in a recognised medical college from an unrecognised medical college by way of migration , that Regulation V had been misread and that not having under gone study in a recognised medical college nor having passed the first professional examination, he could not be admitted to the second year; that he had failed in anatomy and had not sat for his supplementary examination and had therefore ceased to be a student of Dar es Salam University and that the first year course at Dar es Salam University and in India were not equivalent.
Equivalence in any case, it was urged, is to be decided by an expert body and is not in the domain of the Court.
For respondent 1, it was argued that the self contradictory stand of the Council on equivalence had led to the High Court deciding the issue; that equity was in his favour; that he had in any event passed his pre medical test in 1991; and that he belongs to a scheduled tribe.
Allowing the appeal, this Court, HELD: 1.
The Medical Council has come to the correct conclusion that there cannot he migration from unrecognised institution to a recognised medical college.
(799 G) Dar es Salam University has not been recognised as provided in the Indian Medical Council Act, 1956.(7% A) 2.
The High Court does not have the necessary expertise to determine equivalent.
The Medical Council is the main authority in this respect.
(799 C) 789 3.
what is material for grant of permission for migration is the course of study which a student has undergone vis a vis the courses being taught in the medical college in which the migration is sought, and not the individual case.
(799 D) The material placed before the Council was not sufficient to decide equivalence.
The concerned authority is to verify the disputed factual position concerning his performance in the 1991 pre Medical test and decide on considering him for admission for the academic year 1993 94.
(800 E G)


judgement:
pt Petition Nos. 130 & 195 of 1991.
IN Civil Appeal No. 2054 of 1990 From the Judgment and Order dated 23.1.87 of the Central Administrative Tribunal, Calcutta in T.A. No. 1263/86.
G.S. Chatterjee and Avijit Bhattacharjee for the Appellants.
Dr. Anand Prakash, P. Narasimhan for B.K. Prasad, for the Respondents.
The Judgment of the Court was delivered by R.M. SAHAI, J.
Why the appellants should have been forced to file these contempt applications for enforcement of the order passed by this Court as far back as on 30th April 1990 in Civil Appeal No.2054 of 1990, is not without reason.
Grievance of the applicants is that despite clear findings recorded by this Court, opposite parties are going back on it and persisting in the implementation of the order in a manner which frustrates the entire purpose for which the applicants approached this Court and is a clear violation of directions of this Court issued on 30th April 1990.
Entire dispute centered round the practice of exercising option by Assistant Station Masters who were recruited directly.
Were they left any choice in the matter or was it compulsory.
It was held by this Court, that various letters issued made it clear that the option had to be exercised at the time of appointment and where no option was exercised it was deemed to have been exercised.
This Court found that the applicants were those persons who had to exercise option at the time of appointment and their options were irrevocable.
Effect of this was that they had 758 to wait till 1983 when restructuring was done.
The Court further found that the cadre of Assistant Station Master/Station Master in South Eastern Railway was separate and not combined.
But the Chief Personnel Officer applied alternative1, which under restructuring was to be applied to a zone where combined cadre was in vogue, as it was acceptable to leaders of the Union and was beneficial to large number of employees.
The Court therefore did not interfere with implementation of the alternatives, but protected the interest of the applicants by holding thus "But both the employees unions have accepted the implementation of the letter of Chief Personal Officer as it is beneficial to a majority of the employees.
Therefore, it may not be disturbed.
At the same time all those 204 employees who had opted before 1983 must be entitled to the benefit which would have been available to them on their options.
" What remained thereafter, which could not be clear to opposite parties, cannot be appreciated.
The order left no ambiguity that these employees shall be treated separately and would be granted benefit which would have been available to them.
That was possible and obvious if alternative 11 was applied to them.
It was for this reason that the Court directed to create even additional posts.
Attempt was made by the learned senior counsel to urge that it shall disturb seniority and may result in extending it to many others.
We are afraid that this Court in these applications is concerned with the implementation of the order passed by it and not whether the order passed by it was correct or not.
Neither of these submissions were raised earlier and if had been raised, they should be deemed to have been rejected.
Even earlier it had been made clear that no one promoted shall be disturbed.
We, therefore, direct opposite parties to implement the order of this Court in respect of 204/206 employees by applying altemative II to them for purposes of determining their placement and promotion.
After their placements and promotions are so determined under alternative II then they may be governed by the present alternative for future promotions.
Six months ' time was granted in 1990.
The opposite parties have delayed it by nearly two and half years.
We direct the opposite parties to finalise it within two months from today.
The promotions and all benefits shall be given retrospectively.
No application for further extension by opposite parties shall be entertained.
Failure to comply with the directions shall not be treated lightly in future.
759 We are not taking any action in the circumstances for the present.
The contempt applications are disposed of accordingly.
But the respondents shall pay a sum of Rs. 5,000 as costs to the applicants.
U.R. Contempt Petition disposed of.

summary:
The dispute was about whether the exercise of option by Assistant Station Masters, directly recruited, was a matter of choice or was compulsory.
The order of this court of 30 April 1990 inter alia protected the interests of the applicants by holding that the 204/206 employees who had opted before 1983 must be entitled to the benefit which would have been available to them on their options.
The order was not implemented.
It was argued for the condemner that the order of this court would disturb seniority and may result in extending it to many others.
Disposing of the contempt petition, this court, HELD : 1.
The order dt.
30.4.90 left no ambiguity that these employees shall be treated separately and would he granted the benefit that would have been available to them.
(758 D) 2.
The Court in contempt applications is concerned with the implementation of an order passed by it, and not whether such order is correct or not.
3.Neither the submission regarding seniority, nor that it may extend to others was raised earlier, and if raised, they should be deemed to have been rejected.
Even earlier it had been made dear that no one promoted shall be disturbed.
(758 F) 757 4.Within 2 months, alternative 11 to be applied to 204/206 employees for their placement and promotion.
Future promotions may be governed by the present alternative.
Promotions and all benefits shall be given retrospectively.
(758 H) Cost to the applicants of Rs. 5,000