Allahabad High Court
Jyoti Shukla vs K.K. Gupta on 11 August, 2022
Author: Rohit Ranjan Agarwal
Bench: Rohit Ranjan Agarwal
HIGH COURT OF JUDICATURE AT ALLAHABAD Reserved on 03.08.2022 Delivered on 11.08.2022 Court No. - 10 Case :- CONTEMPT APPLICATION (CIVIL) No. - 5385 of 2018 Applicant :- Jyoti Shukla Opposite Party :- K.K. Gupta Counsel for Applicant :- Rahul Agarwal Counsel for Opposite Party :- Mahendra Pratap,Vibhu Rai Hon'ble Rohit Ranjan Agarwal,J.
1. Heard Sri Devansh Mishra, learned counsel for the applicant, Sri Mahendra Pratap, learned counsel for opposite parties no.1 & 3 and Sri Vibhu Rai, learned counsel for opposite party no.2.
2. This contempt application has been filed under Section 12 of the Contempt of Courts Act, 1971 for punishing the opposite parties for the deliberate and willful disobedience of the judgment and order dated 24.03.2017 passed in Writ-C No.1968 of 2017 (Jyoti Shukla Vs. State of U.P. and 4 Others).
3. Facts, in brief, are that the applicant appeared in National Eligibility cum Entrance Test, 2016 (in short ''NEET'). She belonged to General Category student, and held NCC (National Cadet Corps) Category ''C' Certificate also. Applicant was ranked at 3877 in the State of U.P., while in sub-category of NCC, she was ranked 5th all over the State. Counselling was held on 21.09.2016, pursuant to declaration of result on 04.09.2016. She was allotted the seat reserved for the NCC candidates in the NCC general sub category at LLRM Medical College, Meerut. She joined at the said college and pursued her course.
4. A complaint was made on behalf of the applicant with the Director General, Medical Education and Training, Lucknow, U.P. on 21.09.2016. In her letter, she had asked for admission at GSVM Medical College, Kanpur under the NCC general sub category. It was informed to the applicant that student under the NCC sub category Unreserved was already admitted to pursue in GSVM Medical College. The applicant filed Writ-C No.1968 of 2017 with the following reliefs:-
"(a) Issue a writ, order or direction in the nature of Certiorari quashing the allotment of seat reserved for NCC General Sub-Category in LLRM Medical College, Meerut to the petitioner.
(b) Issue a writ, order or direction in the nature of Mandamus directing the respondents to transfer the petitioner to GSVM Medical College, Kanpur on the one seat reserved reserved for NCC general sub-category on which Ms. Ojasvi Yadav has wrongly been admitted.
(c) Issue any other suitable writ, order or direction, which this Hon'ble Court may deem fit and proper in the facts and circumstances of case."
5. After exchange of pleadings, the writ Court on 24.03.2017 found that no relief can be accorded to her, but certainly she could have opted for open category seat at Kanpur. The writ Court gave liberty to the Director General, Medical Education and Training, U.P. that in case, any seat is available in any other medical college in the second year, then after taking due permission from Medical Council of India, and in case petitioner so desires, her request for transfer can be considered. Relevant part of the judgment is extracted hereas under:-
"As far as petitioner is concerned, at this stage, but for the cost mentioned hereinabove no relief can be accorded to her, but certainly as she could have opted for open category seat at Kanpur, we in the facts of the case, give liberty to the Director General Medical Education and Training, U.P. at Lucknow that in case any other seat is available in any other medical college in second year, then after taking due permission from Medical Council of India, and in case petitioner so desires her request for transfer can be considered."
6. Pursuant to the judgment of the writ Court, the applicant made a request to the opposite party no.1 through letter dated 31.03.2017 seeking transfer either to GSVM Medical College, Kanpur or King George Medical University, Lucknow (in short ''KGMU') from LLRM Medical College, Meerut.
7. The opposite party no.1 forwarded the application of the applicant to Secretary, Medical Council of India on 29th November, 2017 for according approval. The Medical Council of India, on 28.02.2018, informed the opposite party no.1 that as the matter regarding migration of applicant falls within the same State, therefore, opposite party no.1 may consider the case of migration of applicant from LLRM Medical College, Meerut to GSVM Medical College, Kanpur or KGMU, Lucknow, as per rules.
8. The opposite party no.1 on 29.08.2018 rejected the request of the applicant for transfer to GSVM Medical College, Kanpur as well as KGMU, Lucknow on the ground that the said medical colleges had not granted "No Objection Certificate" as was required under the Medical Council of India Regulation Clause 6(1) and 6(4), which are extracted hereas under:-
"6(1). Migration of students from one medical college to another medical college may be granted on any genuine ground subject to the availability of vacancy in the college where migration is sought and fulfilling the other requirements laid down in the Regulations. Migration would be restricted to 5% of the sanctioned intake of the college during the year. No migration will be permitted on any ground from one medical college to another located within the same city.
6(4). For the purpose of migration an applicant candidate shall first obtain "No Objection Certificate" from the college where he is studying fr the present and the university to which that college is affiliated and also from the college to which the migration is sought and the university to it that college is affiliated . He/she shall submit his application for migration within a period of 1 month of passing (Declaration of result of the 1st Professional MBBS examination) alongwith the above cited four "No Objection Certificates" to: (a) the Director of Medical Education of the State, if migration is sought from one college to another within the same State or (b) the Medical Council of India, if the migration is sought from one college to another located outside the State."
9. The applicant filed the present contempt application on the ground that the order of the writ Court dated 24.03.2017 was not complied with by the opposite party.
10. This Court had earlier summoned the opposite party no.1, but the KGMU, Lucknow did not grant "No Objection Certificate" to the applicant, thus, the request was turned down.
11. Sri Devansh Mishra, learned counsel appearing for the applicant submitted that the opposite parties have failed to take note of the fact that the writ Court had left it open to the Director General, Medical Education and Training that in case any seat is available in any other medical college in the second year, after due permission from the Medical Council of India, the applicant was to be accommodated. He invited the attention of the Court to the letter issued by the Medical Council of India, wherein entire burden was shifted upon opposite party no.1 to take final call, and if the seats were available as per rules, order of the writ Court was to be complied. Learned counsel invited the attention of the Court to the various information received by the applicant under the Right To Information Act, wherein it has been demonstrated that the seats were available with KGMU, Lucknow, but the University deliberately withheld the necessary "No Objection Certificate".
12. According to Sri Mishra, the total sanctioned seats for the 2016-17 batch was 250, out of which, 229 students passed into the second year and 21 students failed. As per further information made available by KGMU, Lucknow total number of 2 students in the 2016-17 batch could not make it to the second year, even after taking the supplementary examination.
13. He further contended that the objection raised on behalf of the KGMU, Lucknow that the Executive Council of the University had resolved on 09.08.2003, which prohibits that grant of "No Objection Certificate" was only applicable to the Dental Course and not to the MBBS Course. Reliance has been placed upon the decision of the Apex Court in case of Fraz Naseem and Others Vs. Union of India and Others, 2016 (13) SCC 521. Relevant paras 136 to 139 are extracted hereas under:-
"136. On a scrutiny of the letter written by the Directorate of Medical Education, Karnataka, it is absolutely limpid that he has misconstrued Regulation 6. Regulation 6 of the Regulations, as we find, conveys imposition of certain conditions, namely, there should be vacancy in the college where migration is sought and migration has to be restricted to 5% of the sanctioned intake of the college during the year and no migration will be permitted on any ground from one medical college to another located within the same city. The disqualification which has found place in Regulation 6 does not apply to the applicant herein. The question is whether the vacancy had occurred.
137. The Directorate of Medical Sciences has noted that the students who fail to qualify 1st MBBS examination should be treated as a part of the same batch, so that the strength of the whole institution remains stable and meets the requirement of Regulation 6(2) of the Regulations.
138. On a query being made, Mr Gaurav Sharma, learned counsel for the Medical Council of India submitted that when the students fail, they do not remain as students of the same batch and, in fact, they go to the supplementary batch. Further, the learned counsel for the Medical Council of India submitted that the 5% of the total intake capacity has to be filled up with utmost seriousness and there cannot be quarrel over the same. To elaborate, if the intake capacity is 250 and 27 students fail, as submitted by the learned counsel for the applicant, 5% would come to 13. Therefore, there are 13 vacancies available for migration. Figures will be different if the intake capacity is more. The learned counsel would submit that the actual intake capacity is 250. This is basic arithmetic.
139. This being the position, the applicant is entitled in law to apply for migration to Bangalore Medical Council & Research Institute, Bangalore and, accordingly, we permit her and the other students to apply within a period of two weeks hence. The applications shall be considered accordingly as per Medical Council of India Regulations as interpreted by us. It should be treated as an extension of period by this Court for the purpose of migration. This Court hopes and trusts that the respondent State shall take an attitude of sympathy and empathy and not a negative attitude or an attitude of obstinacy. No authority of the State Government even remotely thinks to overreach the orders of this Court and religiously follows the command. The decision shall be taken within four weeks from the date of receipt of the applications. The State of Karnataka shall file a report before this Court within four weeks hence."
14. Reliance has also been placed upon a decision of Co-ordinate Bench of this Court in case of Smt. Vandhana Singh & Others Vs. Javed Usmani, Chief Secretary, U.P. Government, Lucknow & Others, Civil Misc. Contempt Application No.4930 of 2012, wherein the Court held as under:-
"It is well settled that the legality and the merits of the order passed by an authority in compliance of the directions issued by the Court is not normally to be tested in contempt jurisdiction. It is only in the case where on the face of it, the compliance appears to be an eyewash and order passed by the court does not appear to be carried out in letter and spirit, the contempt court may test the order passed by the authority in order to satisfy itself whether there is actual compliance or it is merely an eyewash in order to avoid contempt proceeding."
15. Sri Mahendra Pratap, learned counsel appearing for opposite party no.3 submitted that the order of the writ Court specifically provided that Director, Medical Education and Training was to consider the case of the applicant in case any seat was available in any other medical college in second year, then after taking due permission from Medical Council of India and lastly in case, the applicant so desires, her request for transfer can be considered. According to him, the applicant had filed the writ petition only seeking transfer from LLRM Medical College, Meerut to GSVM Medical College, Kanpur. Subsequent to the judgment, her request was also for KGMU, Lucknow.
16. According to learned counsel, the Medical Council of India on 28.02.2018 had directed that the matter can be considered for migration subject to the rules. Moreover, the migration sub committee of Medical Council of India had taken note of Clause 6(4) of the Graduate Medical Education Regulation, 1997.
17. According to learned counsel, the applicant did not submit "No Objection Certificate" as required under Clause 6(4) of Regulation, 1997 and her representation was decided on the basis of said fact on 29.08.2018. The applicant thereafter on 29.11.2018 submitted another application requesting for her transfer from LLRM Medical College, Meerut to KGMU, Lucknow, in this regard a letter was issued to the applicant requesting her to submit "No Objection Certificate" as provided under Clause 6(4) of Regulation, 1997.
18. It was during contempt proceeding that the opposite party wrote a letter to the Registrar, KGMU, Lucknow, Principal of Medical Colleges of Meerut and Chhatrapati Sahu Ji Mahraj, Kanpur requesting them to issue "No Objection Certificate" for migration of the applicant from LLRM Medical College, Meerut to King George Medical University, Lucknow/ GSV Medical College, Kanpur.
19. The Registrar, KGMU, Lucknow refused to issue "No Objection Certificate" as there was no vacant seat in Academic Year 2016. Pursuant to which, the Director General, Medical Education and Training, on 21.12.2018, passed an order that the migration was not possible in view of refusal of the KGMU, Lucknow in not providing the "No Objection Certificate". According to learned counsel, the order passed by the Director General, Medical Education and Training on 29.08.2018 and 21.12.2018 was never challenged by the applicant and it became final.
20. Sri Vibhu Rai, learned counsel appearing for KGMU, Lucknow submitted that the applicant had only approached the writ Court seeking relief for her transfer from LLRM Medical College, Meerut to GSVM Medical College, Kanpur. The writ Court on 24.03.2017 had not granted any relief to her, but only gave liberty that in case any seat was available in the other medical college of the State in the second year, then the Director General, Medical Education and Training after taking due permission from the Medical Council of India, and in case the applicant so desires, can process the transfer.
21. According to Sri Rai, the University on 20.11.2017 had categorically informed the Director General, Medical Education and Training that there was no vacant seat in the MBBS Course of the year 2016. According to him, the application for transfer could only be processed after due compliance of Regulation 6(4) of 1997, and applicant failed to obtain the required four "No Objection Certificates" thus, it was rightly rejected by the opposite party no.1.
22. I have heard learned counsel for the respective parties and perused the material on record.
23. Section 2 (b) of the Contempt of Courts Act, 1971 defines civil contempt, which means wilful disobedience to any judgment, decree, direction, order, writ or other process of Court or wilful breach of an undertaking given to the Court. Section 2(b) of Contempt of Courts Act, 1971 is extracted hereas under:-
"2. (b) "civil contempt" means wilful disobedience to any judgment, decree, direction, order, writ or other process of a court or wilful breach of an undertaking given to a court."
24. This is a case where the applicant who was the the petitioner before the writ Court had sought her transfer from LLRM Medical College, Meerut to GSVM Medical College, Kanpur on the ground that applicant who was ranked 5th overall in the State in the sub-category of NCC was not given the due medical college, and there was vacancy at Kanpur Medical College, on which she was entitled to be transferred.
25. On 24.03.2017, the writ Court did not accord any relief to her and refused to permit her to be transferred from LLRM Medical College, Meerut to GSVM Medical College, Kanpur. However, the Court left it open with liberty to the Director General, Medical Education and Training that in case of any seat available in any other medical college throughout the State in second year, then after taking due permission from Medical Council of India, and a request being made by applicant, the same was to be considered.
26. On the application moved by the applicant requesting her transfer from LLRM Medical College, Meerut to GSVM Medical College, Kanpur or KGMU, Lucknow, the Director General, Medical Education and Training sought permission from the Medical Council of India, as per the direction of the writ Court.
27. The migration sub-committee of the Medical Council of India, after examining the case, found that the matter falls within the State (Intra-State), therefore, the Director General, Medical Education and Training was itself competent to take decision, as per rules. In the letter dated 28.02.2018 addressed by the Medical Council of India, Regulation 6(4) which was considered by the migration sub-committee was also quoted, which prescribes for "No Objection Certificate" to be obtained by the candidate seeking migration from the college where he is studying for the present and the University to which that college is affiliated and also from the college to which the migration is sought and the University to it that college is affiliated. The Regulation further required that this application for migration was to be submitted within a period of one month of passing (Declaration of result of 1st Professional MBBS Examination) along with four "No Objection Certificates" to the Director General, Medical Education and Training of the State.
28. Regulation 6(4) framed by the Medical Council of India governs the field of migration from one medical college to another medical college in India. Clause 6(4) is of great importance which provides for the moving of the mandatory application along with the "No Objection Certificate".
29. In the case in hand, though the writ Court had not granted relief to the applicant at the first encounter, leaving it open that her request may be considered in the second year by the Director General, Medical Education and Training on the condition of availability of any seat within the State of U.P., and permission having been accorded by the Medical Council of India, the applicant was to submit the necessary "No Objection Certificate" to the authorities for due consideration of her migration application.
30. An effort has been made by the young counsel at the bar to impress upon the fact that Regulation 6(1) of Regulation 1997 mandates that migration is restricted to 5% of the sanctioned intake of the college during the year, and there being 250 seats in KGMU, Lucknow and 21 students having failed to clear the first year examination, there arose vacancy, and permission should have been accorded by the University holds no ground due to the fact that University in 2017 had informed Director General, Medical Education and Training that there was no vacant seat.
31. The direction of the writ Court was only to the extent that Director General, Medical Education and Training was required to consider the request of the applicant for transfer in case seat is available in any other medical college in the second year.
32. The field regarding migration from one college to another is governed by the Regulations framed by the Medical Council of India. The applicant was required to adhere to the said Regulation, while making her request with the Director General, Medical Education and Training, and the required "No Objection Certificate" should have been placed.
33. Once the applicant did not submit the "No Objection Certificate" with Director General, Medical Education and Training, her request was rightly rejected on 29.08.2018, as he was only required to consider the request after due compliance of the procedure as envisaged under the Regulation is made by a candidate.
34. The writ Court never granted the relief as claimed by the applicant, and had only left it open to the discretion of Director General, Medical Education and Training in the second year to consider the request on the availability of any seat. The direction of the writ Court cannot be construed that the applicant was exempted to follow the procedure laid down in the Regulation, and there being a blanket direction to accommodate in the second year.
35. The procedure for migration is well laid down in the Regulation 6(4) of the Regulation of 1997, which till date have not been challenged and are being complied with by the candidates who apply for migration.
36. Moreover, the Director General, Medical Education and Training had passed order on the application moved by the applicant on 29.08.2018, which remained unchallenged.
37. Subsequently, on 21.12.2018 again the order was passed by the Director General, Medical Education and Training on the basis of assurance given by him before this Court when the request for "No Objection Certificate" was turned down by the KGMU, Lucknow, that order also remained unchallenged by the applicant.
38. Recently, the Apex Court in Dr. U.N. Bora, Ex. Chief Executive Officer and others Vs. Assam Roller Flour Mills Association and another 2022 (1) SCC 101 has held that under the contempt jurisdiction, the Court is not expected to conduct a roving inquiry and proceed to decide an issue which has not been dealt with or decided by the Court of first instance, whose order is said to have been flouted. Relevant para 8 of the judgment is extracted hereas under:
"8. We are dealing with a civil contempt. The Contempt of Courts Act, 1971 explains a civil contempt to mean a willful disobedience of a decision of the Court. Therefore, what is relevant is the "willful" disobedience. Knowledge acquires substantial importance qua a contempt order. Merely because a subordinate official acted in disregard of an order passed by the Court, a liability cannot be fastened on a higher official in the absence of knowledge. When two views are possible, the element of willfulness vanishes as it involves a mental element. It is a deliberate, conscious and intentional act. What is required is a proof beyond reasonable doubt since the proceedings are quasi-criminal in nature. Similarly, when a distinct mechanism is provided and that too, in the same judgment alleged to have been violated, a party has to exhaust the same before approaching the court in exercise of its jurisdiction under the Contempt of Courts Act, 1971. It is well open to the said party to contend that the benefit of the order passed has not been actually given, through separate proceedings while seeking appropriate relief but certainly not by way of a contempt proceeding. While dealing with a contempt petition, the Court is not expected to conduct a roving inquiry and go beyond the very judgment which was allegedly violated. The said principle has to be applied with more vigor when disputed questions of facts are involved and they were raised earlier but consciously not dealt with by creating a specific forum to decide the original proceedings."
39. This Court finds that the applicant was not granted any relief by the writ Court on 24.03.2017, and only liberty was given to the Director General, Medical Education and Training to consider the transfer of the applicant in the second year in case of availability of seats in any other medical college, after due permission from Medical Council of India. The Medical Council of India on 28.02.2018 had required the Director General, Medical Education and Training to proceed as per the rules while processing the request for migration from one medical college to another.
40. Regulation 6(4) categorically provides for the applicant while making application for migration to place four "No Objection Certificates", which the applicant in the present case failed to do so.
41. The Director General, Medical Education and Training had rejected the request on 29.08.2018 and thereafter on 21.12.2018. Both these orders were never challenged before any forum by the applicant and have become final.
42. This Court while exercising power under Section 12 of Contempt of Courts Act cannot grant any relief to the applicant which has not been granted by the writ Court. Moreover, the orders passed by the Director General, Medical Education and Training had remained unchallenged by the applicant, and this Court in contempt jurisdiction cannot quash those orders and grant relief which has not been prayed for by the applicant.
43. No case for interference is made out.
44. Contempt application is misconceived and is, hereby dismissed.
Order Date:- 11th August, 2022 SK Goswami [Rohit Ranjan Agarwal, J.]