1 IN THE HIGH COURT OF JUDICATURE AT MADRAS (CONTEMPT JURISDICTION) WEDNESNDAY, THE 27TH DAY OF APRIL, 2011 THE HON'BLE MR.JUSTICE K.CHANDRU CONTEMPT PETITION NO.328 OF 2008 ********* K.Jayanthi, D/o.G.Krishnadass, 54,II Cross Street, Rainbow Nagar, Puducherry – 605 001. .. Petitioner Vs. G.A.Rajakumar Director of Indian Medicine Homeopathy, Anna Hospital Campus, Arumbakkam, Chennai-106. .. Respondent Contempt Petition praying that this Court be pleased to punish the respondent for having violated the order of this Hon'ble Court dated 21/01/2008 and made in W.P.No.18982 of 2007. The above Contempt Petition came up on 20/04/2011 before this Court for hearing in the presence of Mr.V.Raghavachari, Advocate for the petitioner herein; and of Mr.A.Suresh, Government Advocate for the respondent herein; and upon reading the petition and affidavit of K.Jayanthi, filed herein; and the Counter Affidavit of M.Chandrasekaran, filed herein; and having stood over for consideration; the Court made the following order:- https://hcservices.ecourts.gov.in/hcservices/ 2 This contempt petition is filed for the alleged disobedience of the order passed by this court in W.P.No.18982 of 2007, dated 21.1.2008. By the aforesaid order, this Court had directed the third respondent to admit the petitioner in M.D. (Siddha) Course in the Government Siddha Medical College at Palayamkottai for the year 2007-2008. It is on disobedience of the order of this court, the contempt petitioner came to be filed. 2.When the matter came up on 09.04.2008, this Court directed the learned Government Advocate to get instruction from the respondent. On 30.4.2008, this court also directed one seat for M.D.(Siddha) course to be kept vacant under the Central Pool. 3.On notice from this Court, the respondent has filed a counter affidavit, dated 19.04.2011. It was the stand of the respondent that for the year 2007-2008, the admission for M.D. (Siddha) course was made by notification, dated 22.4.2007. All the filled up applications were accepted upto 08.05.2007 in the general category and for the Government of India nominee, it was fixed as 23.5.2007, which is the date for which nomination from the Government of India should be received in their office as per the prospectus approved by the Government. The petitioner did not attend the counselling on 23.5.2007 and the Selection Committee had waited from 9.00 a.m. upto 10.15. a.m.. Since no nominated application under the special category was received from the Government of India, they had passed an unanimous https://hcservices.ecourts.gov.in/hcservices/ 3 resolution that as per the conditions laid down in the prospectus, the special category seats will be carried forward to the general pool. 4.It was stated that by that time when the writ petition was admitted and an interim injunction was granted on 30.5.2007, the admission for MD(Siddha) course in all branches for the academic year 2007-2008 was over. It was also found that the petitioner's application was received by the Department of Ayush on 17.5.2007 and that they did not take any decision on this case as they were waiting for the new guidelines. The Government of India had informed this court that the petitioner was not eligible on the basis of the latest guidelines issued by the Department of Ayush for the Central nominations for M.D. (Siddha) Course. Since the respondent had received only one application of the petitioner under the Central Pool and as the entrance test was also conducted by the Department, there was no other application under this category. If only the Government of India had nominated the application under the special category, her case could have been considered for admission for the year 2007-2008. Even the respondent had written a letter dated 24.4.2007 to the Government of India, but they had not given any nomination. 5.It was also stated that as per the prospectus of the Government of India issued for the year 2007-2008, it is the Government of India, Ministry of Health and Family Welfare was the sole selecting authority for selecting candidates under the https://hcservices.ecourts.gov.in/hcservices/ 4 special category. As per the latest guidelines of the Government of India, the petitioner was not eligible to seek admission under the Government of India nominee as she had not appeared for the entrance examination conducted by the Department. The judgment of this Court had been received only at the end of the academic year 2007-2008 after the cut off date prescribed by the Tamil Nadu Dr. M.G.R. Medical University for admission to M.D. (Siddha) course was over on 31.5.2007. Even if the petitioner was admitted after January, 2008, she could not have secured minimum attendance for writing the examination and that no special class can be conducted only for the petitioner. Therefore, it was stated that the failure to implement the order of this court is due to administrative reason and not because of any willful disobedience of the order passed by this Court. If the petitioner wants to apply afresh for the M.D. (Siddha) Course for the year 2011-12, she can be considered provided she writes entrance examination with proper nomination of the Government of India. The respondent has also submitted an unconditional apology. 6.Though the counsel for the petitioner submitted that there is positive direction from this court to admit her in the course and that the respondent had committed willful default, this Court do not think so. The counsel for the petitioner however contended that at least a direction should be given to admit the petitioner in the academic year 2011-12 since there was positive direction in her favour. But such a request cannot https://hcservices.ecourts.gov.in/hcservices/ 5 be considered especially in the contempt petition. The stand taken by the respondent cannot be found fault with. 7.The Supreme Court has time and again held that no direction can be given to admit the students beyond the cut off date prescribed by the Medical Council of India or any other affiliated University. A reference may be made to the judgment of the Supreme Court in Medical Council of India Vs. Naina Verma and others reported in (2005) 12 SCC 626 and Mridul Dhar (Minor) and another Vs. Union of India and others reported in (2005) 2 SCC 65. 8.In the present case, the order of this court itself was made only on 21.1.2008 long after the cut off date fixed by the Tamil Nadu Dr. M.G.R. Medical University for that academic year. As rightly contended by the respondent, the petitioner's nomination was not received from the Government of India by the Selection Committee. As per the new guidelines even under the Central Pool not only nomination from the Government of India is required, but also the person who is seeking seat must undergo a written test. It is not a case where deliberate disobedience was made by the respondent, in which case this could have considered the grant of compensation as held by the Division Bench of this Court in Minor S.Kiruthika Vs. The State of Tamil Nadu and others reported in 2011 Writ L.R. 100. 9.The Supreme Court vide its judgment in Mohd. Iqbal Khanday v. Abdul Majid Rather reported in (1994) 4 SCC 34 has held that impossibility of performance can be a legitimate https://hcservices.ecourts.gov.in/hcservices/ 6 defence in the contempt petition. The following passages found in paragraphs 14 to 16 of the said judgment may be usefully reproduced below: "14.The law of contempt is based on sound public policy by punishing any conduct which shakes the public confidence in the administration of justice. The order dated 21-9-1992 while directing notice also required the appellant to accord promotion to the respondent as Associate Professor. It requires to be noticed here that is the main prayer in the writ petition itself. In such circumstances, the correctness of such an interim order is open to serious doubt. For a moment, it is not to be understood that the court has no power to pass such an order but the question is whether while granting such interim reliefs the discretion of the court has been correctly exercised? If the writ petition is ultimately dismissed, the respondent would have gained an undue advantage of getting a promotion undeservedly. But we are not on the merits of the interim order. 15.Right or wrong, the order has been passed. Normally speaking, it cannot be gainsaid that the order ought to have been obeyed but it appears that there are insuperable difficulties in implementing the order. First is that the post of Associate Professor, according to the respondent, is a selection post. Secondly, the mere seniority, even if that is assured in favour of the respondent, would not be enough to gain such a promotion. Thirdly, the specific order of the Government was to exclude the period of deputation on foreign assignment from reckoning the duration of the teaching experience of the respondent. Therefore, the respondent did not possess the requisite qualification. Fourthly, such necessary qualifications seem to be mandatory under the rules. That being the position to accord such a promotion, will be violative of the rules. Fifthly, the promotion could be granted only by the Public Service Commission and not by the appellant. 16.From the above, it appears that the appellant was expressing his genuine difficulties with regard to the implementation of the order dated 21-9-1992. In such a situation the insistence of https://hcservices.ecourts.gov.in/hcservices/ 7 the courts on implementation may not square with realities of the situation and the practicability of implementation of the court’s direction. In our considered view, hooking a party to contempt proceedings and enforcing obedience to such orders hardly lends credence to judicial process and authority; more so, in the peculiar facts and circumstances of the case. The court must always be zealous in preserving its authority and dignity but at the same time it will be inadvisable to require compliance of an order impossible of compliance at the instance of the person proceeding against for contempt. Practically, what the court by means of the contempt proceedings seeks is an execution which cannot meet with our approval." 10.In view of the above, there is no case made out to punish the respondent for contempt. Hence the contempt petition will stand dismissed. No costs. Witness the Hon'ble Thiru M.YUSUF EQBAL, The Chief Justice of High Court at Madras, as aforesaid, this the 27th day of April, 2011. SD/- DEPUTY REGISTRAR (OS) //Certified to be true copy// Dated at Madras this the day of 2011. COURT OFFICER (O.S.) From 25th Day of September 2008 the Registry is issuing certified copies of the orders/judgments/Decrees in this format. https://hcservices.ecourts.gov.in/hcservices/ 8 Cns.` CONTEMPT PETITION No.328/2008 THE HON'BLE MR.JUSTICE K.CHANDRU ORDER DATED : 27/04/2011 FOR APPROVAL :16/05/2011 APPROVED ON :24/05/2011 Copy to: Director of Indian Medicine Homeopathy, Anna Hospital Campus, Arumbakkam, Chennai-106. https://hcservices.ecourts.gov.in/hcservices/