REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL JURISDICTION
SUO MOTU CONTEMPT PETITION NOS. 195-196 OF 2012
IN
CIVIL APPEAL NOS. 4318 AND 4319 OF 2012
Priya Gupta & Anr. ...Appellants
Versus
Addl. Secy. Ministry of Health & ...Respondents
Family Welfare & Ors.
J U D G M E N T
Swatanter Kumar, J.
1. While disposing of the Civil Appeal No. 4318 of 2012 titled Priya
Gupta v. State of Chhatisgarh & Ors., the Court not only noticed breach of
time schedule as well as various other irregularities that were committed
by the various stakeholders, but also returned a finding as to failure of
the performance of duties and obligations by the authorities in accordance
with law as stated by this Court.
The Court noticed that the case in hand
was a clear example of calculated tampering with the schedule specified
under the regulations, and the judgments of the Court with a clear
intention to grant admission to less meritorious candidates over candidates
of higher merit. To put it simply, it was a case of favouritism and
arbitrariness. The case in hand also demonstrates how either way the
career of the students of higher merit has been jeopardised by the abuse
and manipulation of provided procedure.
While directing initiation of
proceedings under the provisions of the Contempt of Courts Act, 1971 (for
short “the Act”) held as under:-
4. “We have categorically returned a finding that all the relevant
stakeholders have failed to perform their duty/obligation in
accordance with law. Where the time schedules have not been
complied with, and rule of merit has been defeated, there
nepotism and manipulation have prevailed. The stands of various
authorities are at variance with each other and none admits to
fault. Thus, it is imperative for this Court to ensure proper
implementation of judgments of this Court and the regulations of
the Medical Council of India as well as not to overlook the
arbitrary and colourable exercise of power by the concerned
authorities/colleges.
5. Therefore, we hereby direct initiation of proceedings against
the following under the provisions of the Contempt of Courts
Act, 1971. Let notice be issued to the following, to show
cause why they be not punished in accordance with law.
a. Additional Secretary, Ministry of Health & Family Welfare,
Union of India.
b. Dr. S.L. Adile, Director, Medical Education.
c. Dean of the Jagdalpur College.
d. Dr. M.S. Banjan, Member of the Selection Committee.
e. Dr. P.D. Agarwal, Member of the Selection Committee.
f. Shri Padmakar Sasane, Member of the Selection Committee.
g. Director General, Directorate of Health Services, Union of
India.
5. Notice be issued returnable in two weeks, on which day the
matter shall be listed before this Court. Registry shall
maintain separate file for that purpose.
6. All concerned authorities are hereby directed to carry out the
directions and orders contained in this judgment, particularly
paragraphs 30 and 31 of the judgment forthwith. The directions
shall be applicable for the academic year 2012-2013 itself.
54. A copy of this judgment shall be sent to all concerned
authorities, forthwith, for strict compliance and adherence, without
demur and default.
55. Both the appeals are disposed of with the above directions.”
2. In furtherance to the judgment dated 8th May, 2012, the Court
initiated proceedings against the above defaulting persons under the Act
and directed issuance of notice. Upon appearance, time was prayed for on
behalf of the contemnors to file their reply affidavits and after they were
filed, the contemnors were heard at some length by the Court. The stand
taken by the respective contemnors is distinct and independent. However,
the stand of contemnors “C” to “F” is somewhat common, therefore, it would
be appropriate for the Court to deal with the case of these contemnors
together. The case of contemnors ‘A’ and ‘G’ is to be considered together
and finally that of contemnor ‘B’ will be dealt with separately. First and
foremost, we would deal with the case of Dr. S.L. Adile, whose daughter
Akansha Adile is the direct beneficiary of this entire process. In the
affidavit filed by Dr. Adile, it has been averred that he was working as a
Professor of Ophthalmology in the Medical College, Raipur till 1st August,
2006 and Dean thereafter in the same college. The Director of Medical
Education, Chhatisgarh (Dr. Bhola) retired on 31st August, 2006 and being
the senior, Dr. Adile was asked to relieve Dr. Bhola, on 8th September,
2006 temporarily. This is how he came to be appointed as the Director of
Medical Education. The findings recorded in the order against him which
includes violation of schedule, moulding the process of selection to select
his daughter and actually providing her a seat in the Medical College,
Raipur has not been disputed. However, it is stated that he tenders an
unconditional apology to the Court for all the acts of omission and
commission mentioned in the order dated 8th May, 2012. He prays for the
mercy of the Court on the ground that he was under suspension for last two
years i.e. since 23rd July, 2010 and has suffered already. His daughter
was also asked to pay Rs. 5 lakhs, if she was to continue her course in
terms of the order dated 8th May, 2012, and therefore, he prays for
discharge.
3. Mr. Mukul Rohtagi, the learned senior counsel appearing for Dr. S.L.
Adile argued in principle that the Court may take a lenient view and
discharge the notice of contempt against the contemnor in view of his
unconditional, unqualified apology being tendered at the very first
instance. The apology tendered is bona fide and, thus, should be accepted
by the Court. Explanation to Section 12(1) places an obligation upon the
Court to consider apology in a very objective manner and further provides
that the Court shall not reject the same merely on the ground of it being
qualified or conditional if it is made bonafidely. It is also to be
noticed that the Secretary, Ministry of Health has specifically disputed
that the letter dated 8th August, 2006 was not issued by the Ministry and
is a manipulated one. This is the letter that has been relied upon by Dr.
Adile. Of course, subsequently the said stand was given up by him
4. Without prejudice to the above and in the alternative, the contention
raised is that every contempt, whether initiated on application of a party
or suo motu by the Court, has to be a result of wilful disobedience of the
orders of the Court. Wilful disobedience must be proved as a matter of
fact. The directions or guidelines issued by this Court for general
implementation cannot invite proceedings under the Act, if they are not
strictly adhered to. Such guidelines may not be within the knowledge of a
party and, thus, their non-compliance may not necessarily be a wilful
disobedience of the order of the Court bringing the case of a contemnor
within the rigours of Section 12 of the Act. Contempt proceedings can be
initiated when an action is between the parties to a lis and not where the
Court issues general directions.
5. Tendering an apology is not a satisfactory way of resolving contempt
proceedings. An apology tendered at the very initial stage of the
proceedings being bona fide and preferably unconditional would normally
persuade the Court to accept such apology, if this would not leave a
serious scar on the dignity/authority of the Court and interfere with the
administration of justice under the orders of the Court.
6. ‘Bona fide’ is an expression which has to be examined in the context
of a given case. It cannot be understood in the abstract. The attendant
circumstances, behaviour of the contemnor and the remorse or regret on his
part are some of the relevant considerations which would weigh with the
Court in deciding such an issue. Where, persistently, a person has
attempted to over-reach the process of Court and has persisted with the
illegal act done in wilful violation to the orders of the Court, it will be
difficult for the Court to accept unconditional apology even if it is made
at the threshold of the proceedings. It is not necessary for us to examine
in any greater detail the factual matrix of the case since the
disobedience, manipulation of procedure and violation of the schedule
prescribed under the orders of the Court is an admitted position. All that
we have to examine is whether the apology tendered is bona fide when
examined in light of the attendant circumstances and whether it will be in
the interest of justice to accept the same.
7. The facts which will weigh with the Court while considering
acceptance of an apology are the contemptuous conduct, the extent to which
the order of the Court has been violated, irresponsible acts on the part of
the contemnor and the degree of interference in the administration of
justice, which thereby cause prejudice to other parties. An apology
tendered, even at the outset, has to be bona fide and should be
demonstrative of repentance and sincere regret on the part of the
contemnor, lest the administration of justice be crudely interfered with by
a person with impunity. The basic ingredients of the rule of law have to
be enforced, whatever be the consequence and all persons are under a
fundamental duty to maintain the rule of law. An apology which is not
bonafide and has been tendered to truncate the process of law with the
ulterior motive of escaping the consequences of such flagrant violation of
orders of the Court and causes discernible disrespect to the course of
administration of justice, cannot be permitted. The Court has to draw a
balance between cases where tendering of an apology is sufficient, and
cases where it is necessary to inflict punishment on the contemnor. An
attempt to circumvent the orders of the Court is derogatory to the very
dignity of the Court and administration of justice. A person who attempts
to salvage himself by showing ignorance of the Court’s order, of which he
quite clearly had the knowledge, would again be an attempt on his part to
circumvent the process of law. Tendering a justification would be
inconsistent with the concept of an apology. An apology which is neither
sincere nor satisfactory and is not made at the appropriate stage may not
provide sufficient grounds to the Court for the acceptance of the same.
It is also an accepted principle that one who commits intentional
violations must also be aware of the consequences of the same. One who
tenders an unqualified apology would normally not render justification for
the contemptuous conduct. In any case, tendering of an apology is a
weapon of defence to purge the guilt of offence by contemnor. It is not
intended to operate as a universal panacea to frustrate the action in law,
as the fundamental principle is that rule of law and dignity of the Court
must prevail.
8. In the case of In Re Sanjeev Datta & Ors. [(1995) 3 SCC 619], this
Court while declining to accept an apology tendered by the contemnor
observed that any conduct that is designed to or is suggestive of
challenging the crucial balance of power devised by the Constitution, is an
attempt to subvert the rule of law and is an invitation to anarchy. The
institution entrusted with the task of interpreting and administering the
law is the judiciary, whose view on the subject is made legally final and
binding on all till it is changed by a higher Court or by permissible
legislative measures. Under a constitutional government, such final
authority has to vest in some institution otherwise there will be a chaos.
With these observations, the Court declined to accept the apology where
statements had been made with a malicious attempt to cast aspersions and
attribute motives to the Court and the same were made knowingly by the
contemnor. At this stage, we may also notice another judgment of this
Court in the case of All Bengal Excise Licensees’ Association v.
Raghabendra Singh & Ors. [(2007) 11 SCC 374], where the Court while
declining to accept an apology, punished the contemnors for disobeying the
orders of the Court. The Court noticed that the respondents were senior
officers and were expected to know that under the constitutional scheme of
the country, the orders of the Court have to be obeyed implicitly and that
orders of this Court and of any Court cannot be trifled with. The Court
returned a finding that the officers had acted deliberately to subvert the
orders of the High Court evidently and observed :-
“41. All Respondents 1-4 are senior and experienced officers and
must be presumed to know that under the constitutional scheme of
this country orders of the High Court have to be obeyed
implicitly and that orders of this Court—for that matter any
court should not be trifled with. We have already found
hereinabove that they have acted deliberately to subvert the
orders of the High Court evidently. It is equally necessary to
erase an impression which appears to be gaining ground that the
mantra of unconditional apology is a complete answer to
violations and infractions of the orders of the High Court or of
this Court. We, therefore, hold them guilty of contempt of court
and do hereby censure their conduct. Though a copy of this order
could be sent which shall form part of the annual confidential
record of service of each of the said officers, we refrain from
doing so by taking a lenient view of the matter considering the
future prospects of the officers. As already stated, the
officers shall not indulge in any adventurous act and strictly
obey the orders passed by the courts of law. The civil appeal
stands allowed. Though this is a fit case for awarding exemplary
costs, again taking a lenient view, we say no costs.”
9. The government departments are no exception to the consequences of
wilful disobedience of the orders of the Court. Violation of the orders of
the Court would be its disobedience and would invite action in accordance
with law. The orders passed by this Court are the law of the land in
terms of Article 141 of the Constitution of India. No Court or Tribunal
and for that matter any other authority can ignore the law stated by this
Court. Such obedience would also be conducive to their smooth working,
otherwise there would be confusion in the administration of law and the
respect for law would irretrievably suffer. There can be no hesitation in
holding that the law declared by the higher court in the State is binding
on authorities and tribunals under its superintendence and they cannot
ignore it. This Court also expressed the view that it had become
necessary to reiterate that disrespect to the constitutional ethos and
breach of discipline have a grave impact on the credibility of judicial
institution and encourages chance litigation. It must be remembered that
predictability and certainty are important hallmarks of judicial
jurisprudence developed in this country, as discipline is sine qua non for
effective and efficient functioning of the judicial system. If the Courts
command others to act in accordance with the provisions of the Constitution
and to abide by the rule of law, it is not possible to countenance
violation of the constitutional principle by those who are required to lay
down the law. [Ref. East India Commercial Companies Ltd. v. Collector of
Customs [AIR 1962 SC 1893] and Official Liquidator v. Dayanand & Ors
[(2008) 10 SCC 1].
10. These very principles have to be strictly adhered to by the executive
and instrumentalities of the State. It is expected that none of these
institutions should fall out of line with the requirements of the standard
of discipline in order to maintain the dignity of institution and ensure
proper administration of justice.
11. From the above principle, it is clear that consideration of an
apology as contemplated under explanation to Section12(1) of the Act is not
a panacea to avoid action in law universally. While considering the
apology and its acceptance, the Court inter alia considers a) the conduct
of the contemnor prior and subsequent to the tendering of apology. If the
conduct is contemptuous, prejudicial and has harmed the system and other
innocent persons as a whole, it would be a factor which would weigh against
the contemnors; and b) the stage and time when such apology is tendered.
12. In light of the above principles, if one examines the conduct of Dr.
S.L. Adile, he is a person who cannot plead ignorance to the directions of
this Court inasmuch as he was the officiating Director and responsible for
making admissions not only to the college in question, but to all the
medical colleges in the State of Chhattisgarh. It was expected of him
to conduct the admissions strictly on merit, transparently and in adherence
to the schedule and directions contained in the judgments of this Court.
He attempted to violate the same with impunity. He manipulated the entire
process of admission and directed his subordinates to manage admissions of
appellants, including his daughter, and on the other hand misguided the
Ministry of Health, Government of India. There was flagrant violation of
the orders of the Court which has proved prejudicial not only to the system
of admission, but even to the deserving students who in the order of merit
were entitled to get those seats. No advertisement was effected. There
is nothing on record to show that any other candidate had been informed of
the date of admission. At the eleventh hour on 30th September, 2006, the
last date for admission, very cleverly admission of the two appellants was
managed by him.
13. As already noticed, the violations are admitted on the part of this
contemnor. The tendering of apology by him, though at the initial stage of
the hearings, cannot be accepted by the Court inasmuch as violation of the
orders of the Court is wilful, intentional, and prejudicial. Such
conduct, not only has the adverse effect on the process of admissions and
disturbs the faith of people in the administration of justice, but also
lowers the dignity of the Court by unambiguously conveying that orders of
this Court, its directions and prescribed procedure can be manipulated or
circumvented so as to frustrate the very object of such orders and
directions, thereby undermining the dignity of the Court. Administration
of justice is a matter which cannot be ignored by the Court and the
acceptance of apology tendered by the contemnor would amount to
establishing a principle that such serious violations would not entail any
consequences in law. This would, thus encourage repetition of such
offences, rather than discouraging or preventing others from committing
offences of similar nature as it would have no preventive or deterrent
effect on persons for committing such offences in future. Thus, it is
not a case where the Court should extend mercy of discharging the accused
by acceptance of apology, as it would amount to encouraging similar
behaviour.
14. The contemnor, Dr. Adile, while heavily relying upon the factum of
his having been placed under suspension by the disciplinary authority as
well as the direction to his daughter to pay Rs.5 lacs for continuing with
the medical course to which she was admitted, has argued that the Court
should take a lenient view and accept the apology. We are of the view that
such a contention cannot be of much advantage to the contemnor. These are
not the relevant factors for acceptance of an apology, however, they may
be of some consideration while imposing the punishment.
15. Now, we shall proceed to discuss the legal issues raised on behalf of
the contemnor that in such cases, the proceedings under the Act cannot be
taken recourse to.
16. It is true that Section 12 of the Act contemplates disobedience of
the orders of the Court to be wilful and further that such violation has to
be of a specific order or direction of the Court. To contend that there
cannot be an initiation of contempt proceedings where directions are of a
general nature as it would not only be impracticable, but even impossible
to regulate such orders of the Court, is an argument which does not impress
the Court. As already noticed, the Constitution has placed upon the
judiciary, the responsibility to interpret the law and ensure proper
administration of justice. In carrying out these constitutional functions,
the Courts have to ensure that dignity of the Court, process of Court and
respect for administration of justice is maintained. Violations which are
likely to impinge upon the faith of the public in administration of justice
and the Court system must be punished, to prevent repetition of such
behaviour and the adverse impact on public faith. With the development of
law, the Courts have issued directions and even spelt out in their
judgments, certain guidelines, which are to be operative till proper
legislations are enacted. The directions of the Court which are to provide
transparency in action and adherence to basic law and fair play must be
enforced and obeyed by all concerned. The law declared by this Court
whether in the form of a substantive judgment inter se a party or are
directions of a general nature which are intended to achieve the
constitutional goals of equality and equal opportunity must be adhered to
and there cannot be an artificial distinction drawn in between such class
of cases. Whichever class they may belong to, a contemnor cannot build an
argument to the effect that the disobedience is of a general direction and
not of a specific order issued inter se parties. Such distinction, if
permitted, shall be opposed to the basic rule of law.
17. The directions which have been issued in the cases referred to in the
main judgment clearly provide for admission to medical courses in order of
merit, for the process of admission to be transparent and fair, and that
there must be strict adherence to the time schedule specified in the
judgments. The purpose of this is to ensure that arbitrariness and
discrimination do not creep into this process, and equal opportunity is
ensured to the eligible candidates applying to the medical courses in a
just and fair manner.
18. These directions are intended to serve a greater public purpose and
are expected to be within the knowledge of all concerned persons besides
the fact that the law declared by this Court is deemed to be known to all
concerned. The violation of general directions issued by this Court would
attract the rigours of the provisions of the Act. Whether for such
violation or non-compliance, the Court would punish a person or persons,
would always depend upon the facts and circumstances of a given case. It
is not possible to provide any straight jacket formula that is universally
applicable to all cases. All that we have to examine is whether the
apology tendered is bona fide, when examined in light of the attendant
circumstances and that it will be in the interest of justice to accept the
same.
19. This Court in the case of Mohd Aslam v. Union of India [(1994) 6 SCC
442] observed that when we speak of the rule of law as a characteristic of
our country, no man is above the law but that here every man, whatever be
his rank or condition, is subject to the ordinary law of the realm and
amenable to jurisdiction of the ordinary tribunals. Respect for law and
its institutions is the only assurance that can hold a pluralist nation
together. One should ensure respect for law as its breach will demolish
public faith in accepted constitutional institutions and weaken the
peoples’ confidence in the rule of law. It will destroy respect for the
rule of law and the authority of Courts and will thus seek to place
individual authority and strength of principles above the wisdom of law.
20. The provisions of the Act do not admit any discretion for the
initiation of proceedings under the Act with reference to an order being of
general directions or a specific order inter se the parties. The sine qua
non to initiation of proceedings under the Act is an order or judgment or
direction of a Court and its wilful disobedience. Once these ingredients
are satisfied, the machinery under the Act can be invoked by a party or
even by the Court suo motu. If the contention raised on behalf of the
contemnor is accepted, it will have inevitable consequences of hurting the
very rule of law and, thus, the constitutional ethos. The essence of
contempt jurisprudence is to ensure obedience of orders of the Court and,
thus, to maintain the rule of law. History tells us how a State is
protected by its Courts and an independent judiciary is the cardinal pillar
of the progress of a stable government. If over-enthusiastic executive
attempts to belittle the importance of the Court and its judgments and
orders, and also lowers down its prestige and confidence before the people,
then greater is the necessity for taking recourse to such power in the
interest and safety of the public at large. The power to punish for
contempt is inherent in the very nature and purpose of the Court of
justice. In our country, such power is codified. It serves at once a dual
purpose, namely, as an aid to protect the dignity and authority of the
Court and also in aiding the enforcement of civil remedies. Looked at from
a wider perspective, contempt power is also a means for ensuring
participation in the judicial process and observance of rules by such
participants. Once the essentials for initiation of contempt proceedings
are satisfied, the Court would initiate an action uninfluenced by the
nature of the direction i.e. as to whether these directions were specific
in a lis pending between the parties or were of general nature or were in
rem.
21. The reliance by the contemnor upon the judgment of In Re. M.P.
Dwivedi & Ors. [(1996) 4 SCC 152], does not further the cause of the
contemnor. On the contrary, it supports the view that we are taking. In
this case, despite the judgment of this Court, the accused persons were
handcuffed and brought in the court of learned Magistrate who was a young
judicial officer. Upon initiation of contempt proceedings, it was
contended that the officer was not aware of the directions issued by this
Court. Rejecting the plea of ignorance of law, the Court returned a clear
finding that there was default on the part of the contemnor and disapproval
of such conduct was ordered to be placed on their personal files. However,
the Court did not punish them primarily on the ground that they were young
judicial officers and had ignored the order of the Court. The directions
of this Court in the case of Prem Shankar Shukla v. Delhi Adminsitration
[(1980) 3 SCC 526] issuing guidelines prohibiting such handcuffing itself
were, in that sense, of a general nature and this Court clearly held that
they were required to be obeyed without exception.
22. Equally, the contemnor cannot draw any advantage from the judgment of
this Court in the case of Packraft (India) Pvt. Ltd. through its Director
V.S. Mann v. U.P.F.C. through its M.D. R.M. Sethi and Others [(1996) 1 SCC
304] as that was a judgment on its own facts and the Court did not state
any absolute proposition of law. We may notice that in that case, the
applicant had participated in the sale of the property which was alleged to
have been sold contrary to the guidelines issued by the Court and had not
taken any steps during that period. Since, such steps could be corrected
by adopting the procedure of judicial review, the Court did not initiate
the contempt proceedings. The law is well settled that mere availability
of another legal proceeding does not debar invocation of the provisions of
the Contempt of Courts Act. Even where execution petitions are filed or an
order of injunction is issued and if during the course of the proceedings,
the act or conduct of a non-applicant may be such which would invite the
proceedings under the Act then such proceedings would not be debarred.
23. As already noticed, contempt proceedings are intended to ensure
compliance of the orders of the Court and adherence to the rule of law.
The directions are binding and must be obeyed by the parties and all
concerned stricto sensu. In fact, the directions of the present kind are
to be placed at a higher pedestal as compared to cases where the matter is
inter se between two parties to the lis as they are intended to attain a
greater purpose and ensure adherence to rule of law in a particular process
which otherwise would be arbitrary and violative of constitutional mandate.
In the case of Asha Sharma v. Pt B.D. Sharma University of Health Sciences
[(2012) 7 SCC 389], this Court held as under :
“25. Strict adherence to the time schedule has again been a
matter of controversy before the courts. The courts have
consistently taken the view that the schedule is sacrosanct like
the rule of merit and all the stakeholders including the
authorities concerned should adhere to it and should in no
circumstances permit its violation. This, in our opinion, gives
rise to dual problem. Firstly, it jeopardises the interest and
future of the students. Secondly, which is more serious, is that
such action would be ex facie in violation of the orders of the
court, and therefore, would invite wrath of the courts under the
provisions of the Contempt of Courts Act, 1971. In this regard,
we may appropriately refer to the judgments of this Court in
Priya Gupta, State of Bihar v. Sanjay Kumar Sinha, Medical
Council of India v. Madhu Singh, GSF Medical and Paramedical
Assn. v. Assn. of Self Financing Technical Institutes and
Christian Medical College v. State of Punjab.
26. The judgments of this Court constitute the law of the land
in terms of Article 141 of the Constitution and the regulations
framed by the Medical Council of India are statutorily having
the force of law and are binding on all the parties concerned.
Various aspects of the admission process as of now are covered
either by the respective notifications issued by the State
Governments, prospectus issued by the colleges and, in any case,
by the regulations framed by the Medical Council of India. There
is no reason why every act of the authorities be not done as per
the procedure prescribed under the Rules and why due records
thereof be not maintained. This proposition of law or this issue
is no more res integra and has been firmly stated by this Court
in its various judgments which may usefully be referred at this
stage. (Ref.: State of M.P. v. Gopal D. Tirthani, State of
Punjab v. Dayanand Medical College & Hospital, Bharati
Vidyapeeth v. State of Maharashtra, Chowdhury Navin Hemabhai v.
State of Gujarat and Harish Verma v. Ajay Srivastava.)”
24. In view of the above established principle, we have no hesitation in
rejecting even the other contention raised on behalf of the contemnor.
Having dealt with both the contentions raised on behalf of the contemnor,
we conclude that the contemnor, Dr. S.L. Adile, has wilfully violated the
directions of this Court and has manipulated the process of selection laid
down by this Court so as to gain personal advantage for admission of his
daughter and the other appellant thereby causing serious prejudice to other
candidates of higher merit. Having held him guilty of the offence of civil
contempt in terms of Section 12 of the Act, we refrain from awarding him
civil imprisonment for the reasons aforenoticed and award him a penalty of
Rs.2,000/- as fine.
Contemnors (C) to (F) : Ms. Amrita Banerjee Mitra, former Assistant
Prof. Physiology, Medical College Jagdalpur. Chhattisgarh; Dr. Sanjivani
Wanjari, former Associate Prof. Obstetrics and Gynaecology, Medical College
Jagdalpur, Chhattisgarh; Dr. P.D. Agrawal, former Associate Prof. Radiology
medical College, Jagdalalpur, Chhattisgarh and Mr. Padmakar Sasane, former
Demonstrator Biophysics in the Department of Physiology, Medical College
Jagdalpur, Chhattisgarh
25. The stand taken by these contemnors in their reply affidavit is that
Ms. Amrita Banerjee had taken over as acting Dean on 1st November, 2006 and
she had acted in furtherance to the letters issued by the Director. While
Dr. Sanjivani Wanjari, Dr. P.D. Agrawal and Mr. Padmakar Sasane have stated
that they were members of the Selection Committee which had recommended
admission of the two appellants, they also have taken up the stand that
they had acted as per the directions of the Dean. It is further pointed
out that the Dean had constituted the Committee and required it so as to
make recommendations for admission. On behalf of Ms. Banerjee, it is
stated that she had received a letter from the Director of Medical
Education Office on 30th September, 2006 that the seats should be filled
according to merit upon establishing contact with the candidates. On 30th
September, 2006 itself, she had constituted the Committee consisting of the
other three contemnors and, in fact, the Committee conducted its entire
proceeding and recommended the names of the two candidates, i.e. Kumari
Priya Gupta and Kumari Akanksha Adile and they were granted admission on
that very day i.e. on 30th September, 2006. The same was intimated to the
Director of Medical Education Office vide a letter of the same date. All
these contemnors have relied upon a judgment of this Court in the case of
D.P. Gupta v. Parsuram Tiwari [(2004) 13 SCC 746] to contend that if a
person acts upon the directions of his superior, he is not liable to be
punished for contempt. In the alternative, they have also tendered
unconditional apology before this Court.
26. Firstly, we must deal with the case of D.P. Gupta (supra). In that
case, the High Court had punished the Vice-Chancellor for over-reaching the
judgment of the High Court by exercising his power to condone the break in
service for promotion to the post of Head of Department. The High Court
also punished the Registrar of the University who was stated to have
advised the Vice-Chancellor to act accordingly. The Supreme Court, while
upholding the conviction of the Vice-Chancellor of the University noticed
that the person concerned was not the acting Registrar who had advised the
Vice-Chancellor but had merely carried out the order of the Vice-Chancellor
by issuing the notification, which he was bound to carry out.
Accordingly, the prayer of the appellant was allowed by this Court. It is
obvious that the contemnor in that case had not done any act or advised the
Vice-Chancellor on any count whatsoever. The Vice-Chancellor had issued an
order condoning the break in service and required the Registrar to issue
notification in furtherance thereto. In these circumstances, the Supreme
Court found that he was not guilty of violating the order of the Court as
he had merely issued notification as directed. Certainly, this case on
facts has no application to the case in hand. The Dean of the College was
expected to act in accordance with law. She not only abdicated her
responsibilities and obligations in conducting a fair and transparent
admission to the two remaining seats but, in fact, colluded with Dr. Adile,
Director of the Health Services in ensuring manipulation of the process
leading to admission of his daughter and deprived more meritorious students
of those seats. In her entire affidavit or in the letter, she has not
averred that any other candidate was informed or contacted on telephone in
the entire State, which means that all other meritorious and eligible
candidates were not even informed of availability of the two seats. It was
her responsibility to ensure that the vacancy of such seats be duly
intimated to the eligible candidates, which was not done, primarily with
the intention to favour the two appellants who have been given admission in
a most arbitrary manner. It is not even disputed before the Court that
candidates, who were much higher in the order of merit than the two to whom
seats were awarded, have not got admission to the medical course. It is
also surprising that within the working hours of the office on 30th
September, 2006, the entire commotion of awarding seats to the two
candidates was completed. The scrutinizing of the applications and
documentation, the holding of the interview and even deposit of fees by the
appellants was completed on that very day. All this could not have
happened but for complete collusion between the Director, the Dean and the
Selection Committee. It is also not clear as to why the vacancy position
was informed by the Dean to the Director on 30th September, 2006 though the
second counseling had been held between 22nd and 23rd August, 2006. It was
expected of her to inform the vacancy position well in time. Intentionally
withholding of this information does not speak well of the functioning of
the Committee.
27. The members of the Selection Committee were to discharge the very
onerous duty of ensuring that all the eligible candidates had been informed
of the vacancy position and they were also expected to scrutinise the
certificates of eligible candidates and recommend admission strictly in
order of merit. They have not even averred in their affidavit that vacancy
position was in the knowledge to the eligible persons. It is not only
improbable but impossible to believe that in the entire State and even from
the same town, no candidate would have come to take admission to the
medical courses, had they been intimated of the vacancy position. The
Committee has not only failed to discharge its onerous duty but has even
kept all principles of fair selection aside and ensured selection of the
daughter of the Director. In contradistinction to D.P. Gupta’s case
(supra), none of these persons were obliged to carry out the directions of
the Director to give admission to these two candidates. In fact, there was
no such direction. These persons were not subordinate to the Director or
even the Dean while performing the duties for filling up the two vacancies
as members of the Selection Committee. They cannot take shelter of bona
fide exercise of power in obeying orders of the superior.
28. In addition to this and for the reasons recorded in the earlier part
of the judgment, we have no hesitation in holding that all these four
persons have also violated the orders of the Court and have circumvented
the process of selection and defeated the very object of the directions
issued by this Court. They have lowered the dignity and authority of the
Court and, thus, are liable to be punished for violating the orders of this
Court. Consequently, they are also punished and directed to pay a fine of
Rs.2,000/- and copy of this order shall be placed on their personal file.
29. Now, we will deal with the case of Mr. Keshav Desiraju, Special
Secretary in the Ministry of Health and Family Welfare and of Jagdish
Prasad, director General, Health Services, Ministry of Health and Family
Welfare, Government of India. Mr. Keshav Desiraju has stated in his
affidavit that he has been very serious in maintaining the time Schedule
for giving permission to new medical colleges taking admissions for
MBBS/BDS courses under Section 10(a) of the Medical Council of India Act,
1956 by 15th July of every year. The permission was stated to be granted
to the said college on 15th July, 2006 for the academic year 2006-2007. It
is further stated that the State of Chhattisgarh has contributed only three
seats of MBBS at JLN Medical College, Raipur, Chhattisgarh and no seat was
contributed in the Government Medical College NMDS Jagdalpur towards
Central Pool quota. Thus, the question of allotting of seat from the
central pool quota did not arise. He further affirms that they shall
strictly adhere to the schedule term provided under the judgment of the
Court.
30. Dr. Jagdish Prasad in his affidavit has also stated that the
Government Medical College, Jagdalpur was given approval on 15th July, 2006
as per Rules for the academic year 2006-07. Admission to 15% quota was
completed by 8th August, 2006 and the unfilled seats were returned to the
respective State Governments. According to this Affidavit, Kumari Akanksha
and Kumari Priya Gupta did not belong to All India quota. The Jagdalpur
college was granted permission for starting the academic procedure for
academic year 2006-07 by the Government of Chhattisgarh on 14th August,
2006. The fake admission of the two candidates came to be known to the
Department when an application under the Right to Information Act was filed
by one Dr. Anil Khakharia in September, 2009 upon which the action was
taken. The letter dated 8th August, 2006 issued by the Director General’s
office was fake. The admission was cancelled vide letter dated 19th
September, 2010. It is further averred that the Directorate strictly
adheres to the schedule provided. It is also stated that no deviation has
been made from the prescribed procedure, time schedule approved by the
Supreme Court.
31. From these two affidavits, it is in fact clear that both these
contemnors are not directly responsible for violating any order or
direction of the Court. However, they are expected to exercise proper
control and supervision over grant of recommendation, permission to give
admission in the colleges and the admission process.
The Director General
of Health Services, Union of India is responsible for maintaining
transparency in the process of admission to the medical colleges.
Two
things are clear that they ought to have checked that the State could not
have permitted the college to grant admission to the students on or after
August 14, 2006 as 15th of July, 2006 was the last date for grant of
recognition and permission to run the medical college.
Secondly, when the
complaint was received, the Ministry as well as the Directorate was
expected to act with greater expeditiousness and ought not to have
permitted the wrongly granted admissions to continue.
In fact, the
Government or the Directorate both took no action against the institute,
even till date.
There is apparent lack of proper supervision and
enforcement of the directions issued by this Court on the part of these
contemnors.
32. Having considered the entire spectrum of the matter, we are of the
considered view that the ends of justice would be met by issuing a warning
to both these contemnors and not to punish them with fine or imprisonment.
They should be more careful in discharge of their functions and duties in
accordance with the judgment of this Court and we further direct them to
ensure circulation of this judgment as well as the judgment of Priya
Gupta’s case to all the Directors, Health Services of the respective
States, Deans of the Universities holding the selection/examination or
admission process for MBBS/BDS courses as well as to the Dean of all the
colleges.
33. In result of the above discussion, contemnor Dr. S.L. Adile, Amrita
Banerjee, Dr. Sanjivani Wanjari, Dr. P.D. Agrawal and Mr. Padmakar Sasane
are hereby punished and awarded the sentence of fine of Rs.2,000/- each.
The fine should be deposited within four weeks from today. In the event of
default, they shall be liable to undergo civil imprisonment for a period of
two weeks. The notice of contempt against them is discharged, however,
subject to the observations aforemade.
……………………………..J.
[A.K. Patnaik]
……………………………..J.
[Swatanter Kumar]
New Delhi
December 13, 2012
