Dr C Sunitha, Mdobg vs M.Raghavendra Rao
2022 Latest Caselaw 1964 AP

  THE HON'BLE SRI JUSTICE M.SATYANARAYANA MURTHY

                CONTEMPT CASE NO.1757 OF 2021

ORDER:

This contempt case is filed under Sections 10 to 12 of

Contempt of Courts Act, 1971, by the petitioners - Dr.C.Sunitha

and Dr.A.Sudha Rani to punish the contemnor - respondent for

disobedience or deliberate flouting of the order dated 05.01.2021

passed by this Court in W.P.No.23501 of 2020.

The petitioners filed writ petition questioning the proceedings

issued by the respondent in Rc.No.8171/E1-A/2019 dated

14.10.2020. On 05.01.2021 this Court granted interim suspension

of the impugned order for a period of two (2) months.

The petitioners herein are the writ petitioners, who filed the

writ petition for the relief stated above alleging that they are

eligible, qualified and entitled to be promoted as Associate

Professors OBG. Petitioner No.1 was appointed as Assistant

Professor OBG on 03.02.2010 and petitioner No.2 was appointed

as Assistant Professor OBG on 12.03.2010. Both petitioners have

put in the required minimum service of 5 years in the category of

Assistant Professors and they are eligible to be considered and

promoted as Associate Professors for the panel year 2020-21.

While so, the Government of Andhra Pradesh has issued

G.O.Ms.No.163, HM&FW dated 16.10.17 extending the Career

Advancement Scheme as per UGC Guidelines. Accordingly, the pay

scale of both the petitioners were fitted into the Associate

Professors pay scale vide Proceedings dated 18.01.2019 with effect

from 01.09.2015. This is only a fitment of pay scale and not

regular promotion as Associate Professors.

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For panel year 2018-19, there were no vacancies for the post

of Associate Professors in Kurnool Medical College. The Vacancy

position was displayed showing as NIL for Kurnool Medical

Colleges. Vacancy position was displayed to all other medical

colleges, except Kurnool Medical College. For the purpose of filling

up the vacancies of Associate Professors for the panel year 2018-

19. Respondent No.1 vide intimation dated 04.02.2019 conducted

counselling which was held on 07.02.2019. Accordingly, three

seniors to these petitioners have attended the said Counselling and

were promoted as Associate Professors. They have accepted the

promotions as Associate professors. But when it came to joining

the posts, they have not joined at the place of posting. They wanted

to continue at Kurnool only. There were no vacancies of Associate

Professors at Kumool during the panel year 2018-19. No vacancy

was shown at Kurnool. Once they have accepted the promotions

they are bound to go and join at the places they were posted i.e.

outside Kurnool. But deliberately they did not join.

For the next panel year i.e. 2019-20 also there were no

vacancies of Associate Professors in Kurnool Medical College. On

09.01.2020, respondent No.1 has prepared Screening Committee

Proposals for the panel year 2019-20. Surprisingly, the names of

the three seniors who were promoted for the vacancies of the panel

year 2018-19, were again shown in the list and they figured at

Serial Nos.1, 23 and 62 respectively. Respondent No.1 vide

communication dated 13.10.2020 has displayed the names of

persons who were promoted as Associate Professors OBG and also

the vacancy position. In so far as the Speciality OBG is concerned,

four persons were promoted as Associate Professors viz.

MSM,J cc_1757_2021

(1) Dr. G.S.Snigdha, Assistant Professor of OBG, Kurnool

Medical College, Kurnool

(2) Dr. K.Sreelatha, Assistant Professor of OBG, Kurnool

Medical College, Kurnool,

(3) Dr K.Kavita,, Assistant Professor of OBG, Kurnool

Medical College, Kurnool and

(4) Dr T.Sudha, working at AMC Vizag.

The vacancy position is shown as follows:

(1) GMC Anathapuramau-1;

(2) GMC Ongole (1);

(3) SMC Vijayawada-1;

(4) SCSR GMS Nellore-1.

Therefore, these three seniors were once again considered

and promoted as Associate Professors in the vacancies shown. It is

significant to note that there are no vacancies at Kurnool.

For the panel year 2020-21, due to promotion of certain

Associate Professors as Professors, there arose 3 vacancies at

Kurnool Medical College for the panel year 2020-21. For these

panel years these petitioners are eligible and entitled to be

promoted. Their respective spouses are working in Kurnool and

hence they are entitled to be considered for posting at Kurnool

Medical College. While so by the order dated 09.01.2020,

respondent i.e. the DME has posted these three seniors as

Associate Professors at Kurnool where admittedly there is no

vacancy. Thus they are occupying the posts which are meant to be

thrown open for the promotees of 2020-21 panel year. By their

illegal postings, the petitioners are put to severe loss and injury.

MSM,J cc_1757_2021

The petitioners gave representation during October, 2020 to

respondent No.1, but no action was taken. However, the

petitioners filed W.P.No.23501 of 2020. This Court vide order dated

05.01.2021 suspended the impugned proceedings initially for a

period of 2 months. But the respondent did not implement the

order and violated the direction issued by this Court and permitted

the three persons to continue to work as Associate Professors in

Kurnool Medical College.

For the panel year 2021-22 vacancies have to be filled up in

the posts of Associate Professors OBG. The petitioners requested

information under RTI Act relating to the vacancy position.

Respondent vide letter dated 23.09.2021 stated that in so far as

Kurnool Medical College is concerned, there are 5 sanctioned posts

and at present there is no vacancy. This means that the said three

persons whose order of posting at Kurnool Medical College was

suspended were also included in the above vacant position which

is in utter violation of the orders of this court. When the Court

suspended their orders of posting on promotion to Kurnool Medical

College, these posts should remain vacant. They cannot be shown

as being filled up, which in utter violation of the order passed by

this Court. Therefore, the respondent - contemnor violated the

order intentionally, thereby liable for punishment for the contempt

of Court, requested to punish the respondent.

Respondent filed counter denying material allegations

interalia contending that the promotions to the posts of Associate

Professor of OBG was done by DPC on 31.08.2020 based on the

seniority declared in the cadre of Assistant Professors and

displayed on the DME website and circulated. The cadre of

MSM,J cc_1757_2021

Assistant Professor is promoted as Associate Professor based on

G.O.Ms.No.154 HM&FW (A2) department dated 04.05.2002 which

takes into consideration the seniority in the cadre of Assistant

Professors.

Petitioner No.1 - Dr.C.Sunitha, Asst. Professor of OBG. KMC,

Kurnool was at Serial No.317. Petitioner No.2 - Dr. A.Sudha Rani,

Asst. Professor of OBG, KMC, Kurnool was at serial No.322.

Respondent Nos.2 to 4 in the main writ petition viz. Dr.

G.S.Snigdha was at Serial No 180 (a) based on the revised

seniority on 09.09.2019, Dr. K.Sreelatha was at Serial No. 218 and

Dr.K.Kavitha was at Serial No. 239. Based on the above seniority

list Dr. C.Sunitha and Dr. A.Sudha Rani, the petitioners are

juniors to all the three respondents i.e. No. 2 to 4.

The petitioners are not questioning the seniority or the DPC

in which the respondents were promoted as Associate Professors.

DPC was held on 31.08.2020. The list of Assistant Professors who

cleared the DPC was displayed and counselling was held for place

of posting on 13.10.2020. Based on the vacancies, posting orders

were issued. Subsequently, fresh vacancies arose in which the

respondents were posted at Kurnool Medical College, Kurnool as

Associate Professors in OBG Department. Thus, respondent No.1

did not violate the rule of seniority in promoting the Assistant

Professors as Associate Professors of OBG. Dr. K.Sreelatha and Dr.

K.Kavitha were promoted in the previous year panel of 2019 and

have foregone their promotion and not joined as Associate

Professors which has been recorded. Every Doctor in all cadres has

two time options to forego any promotion. Hence, they were

considered and promoted in the DPC held on 31.08.2020. Thus,

MSM,J cc_1757_2021

there is no violation much less wilful violation of order passed by

this Court on 05.01.2021.

During hearing, Dr.K.Lakshmi Narasimha, learned counsel

for the petitioner, would contend that though the proceedings in

Rc.No.8171/E1-A/2019 dated 14.10.2020 were suspended,

respondent - contemnor continued respondent Nos.2 to 4 as

Associate Professors at Kurnool Medical College in violation of the

order though no vacancies were available for panel year 2020-21.

Posting respondent Nos.2 to 4, though no vacancies were available

at Kurnool Medical College, despite suspension of proceedings,

amounts to intentional violation or disobedience of order of this

Court. Consequently, respondent is liable for punishment under

Section 12 of the Contempt of Courts Act, 1971.

Sri Vadapalli Ramesh, learned counsel for the contemnor,

would contend that the question of violation of the Order of the

Court does not arise as on the date of passing the Order on

05.01.2021. respondent Nos.2 to 4 are already working as

Associate Professors in Kurnool Medical College. In support of this

contention, he placed reliance on the judgment of the Apex Court

in "State of Jammu and Kashmir v. Mohd. Yaqoob Khan1". On

the strength of the above judgment, learned counsel for respondent

requested to exonerate the respondent, finding him not guilty in

the contempt case.

It is an undisputed fact that this Court passed an order on

05.01.2021 suspending the proceedings in Rc.No.8171/E1-A/2019

dated 14.10.2020 by which the respondents were posted at

Kurnool Medical College, Kurnool. When the proceedings

(1992) 4 SCC 167

MSM,J cc_1757_2021

impugned in the writ petition are suspended, respondent Nos.2 to

4 in the writ petition shall not be continued as Associate Professors

at Kurnool Medical College, Kurnool and there were no vacancies

prima facie in the cadre of Associate Professor in Kurnool Medical

College by then. It appears that their continuation as Associate

Professors at Kurnool Medical College despite non-availability of

vacancies is to accommodate them to continue at Kurnool Medical

College after vacancies arose in the particular cadre. Even though

respondent Nos.2 to 4 given up their promotion once, they were

considered in the next panel year, despite non-availability of

vacancies, they were accommodated at the same place, which is

illegal prima facie. Therefore, this Court suspended the impugned

proceedings, but the merits of the order cannot be decided in the

present contempt case. If really, the contemnor is aggrieved by any

order of this Court, it is open to him to challenge the same in the

intra-Court appeal, but without exhausting such remedy of appeal,

respondent cannot give any different interpretation to the order to

avoid implementation of the order.

In the entire counter, respondent explained the procedure

followed by DPC while publishing the vacancy position and eligible

candidates for being considered for the post of Associate Professor

of OBG. But for two panel years, no vacancies were available, still

respondent accommodated those who were promoted as Associate

Professors in Kurnool Medical College, Kurnool despite suspension

of order. Contentions raised in the counter filed by the respondent

in the contempt case explaining the procedure followed by

respondent for promoting respondent Nos.2 to 4 in the main writ

MSM,J cc_1757_2021

petition need not be examined by this Court in the present

contempt case and the jurisdiction of this Court is limited.

While dealing with an application for contempt the Court

cannot traverse beyond the order, non-compliance of which is

alleged. In other words, it cannot say what should not have been

done or what should have been done. It cannot traverse beyond the

order. It cannot test correctness or otherwise of the order or give

additional direction or delete any direction. That would be

exercising review jurisdiction while dealing with an application for

initiation of contempt proceedings. The same would be

impermissible and indefensible. (Vide: Prithavi Nath Ram v.

State of Jharkhand2)

Therefore, in view of the limited jurisdiction, this Court is

required to examine whether the contemnor violated the order

intentionally. If the Court finds that the contemnor violated the

order, the Court has to impose punishment against the contemnor

in accordance with law and no other course is open to the Court.

In the present case, the impugned proceedings in the writ

petition were suspended. In such case, the persons, who were

posted at Kurnool have to be accommodated at different place

where vacancies are available. Instead of implementing the

direction issued by this Court, the contemnor continued

respondent Nos.2 to 4 in the writ petition in the same college so as

to accommodate them in the vacancies likely to arise during the

next panel year, prima facie. Therefore, such conduct directly

amounts to violation of order of this Court since the contemnor

being a Director is conscious about the ill-consequences that flow

AIR 2004 SC 4277

MSM,J cc_1757_2021

from such violation. Therefore, this Court can safely conclude that

the contemnor violated the order consciously and intentionally.

The Contempt of Court is defined under Section 2(a) as

follows: "contempt of court means, civil contempt or criminal

contempt", Whereas clause (b) of Section 2 defines Civil Contempt

as "willful disobedience to any judgment, decree, direction, order,

writ or other process of a court or wilful breach of an undertaking

given to a court."

In view of definition under Section 2(b) of the Contempt of

Courts Act, non-compliance or deviation of the order of the Court

would construe civil contempt. The Contempt jurisdiction is not

conferred on the Subordinate Courts and it is only conferred on

the Court of record, in view of Article 215 of the Constitution of

India. According to it, the High Court shall be a Court of record

and shall have all the powers of such a Court, including the power

to punish for contempt of itself. The jurisdiction of contempt is

independent jurisdiction of its original nature. Therefore, this

Court is competent to exercise such power to punish a person, who

is guilty of contempt and this jurisdiction is enjoyed by Courts, is

only for the purpose of upholding the jurisdiction of the judicial

system that exists. While exercising this power, the Court must

not react by the emotion, but must act judicially. Contempt

proceedings are intended to ensure compliance of the orders of the

Court and strict adherence of rule of law. Once, the essentials for

initiation of contempt proceedings are satisfied, the Court shall

initiate action, uninfluenced by the nature of direction in a pending

lis before the Court vide judgment in Priya Gupta and others vs.

Additional Secretary, Ministry of Health and Family Welfare

MSM,J cc_1757_2021

and others3). Contempt jurisdiction enjoyed by the Courts is only

for the purpose of upholding the majesty of judicial system that

exists. While exercising this power, the Courts must not be hyper

sensitive or swang by emotions, but must act judicially (Vide:

Chairman, West Bengal Administrative Tribunal vs. SK.

Monobbor Hossain4).

"Contempt" is disorderly conduct of contemnor causing

serious damage to the institution of justice administration. Such

conduct, with reference to its adverse effects and consequences,

can be discernibly classified into two categories one which has a

transient effect on the system and/or the person concerned and is

likely to wither by the passage of time while the other causes

permanent damage to the institution and administration of Justice

(Vide: Kalyaneshwari vs. Union of India and others5).

When once an order is passed, it is the duty of the

authorities to implement the same without giving any

interpretation and if the order is contrary to law, they are at liberty

file appropriate appeal before the appellate authority. But, without

preferring an appeal, the respondent/contemnor cannot interpret

the order and give different meaning to the order passed by the

Court, which is sought to be implemented, as directed by this

Court and such act of the respondent/contemnor is illegal in view

of the law declared by the Hon'ble Apex Court in Commissioner,

Karnataka Housing Board vs. C. Muddaiah6, wherein, it is held

as follows:

JT 2013 (1) SC 27, 2012 (12) SCALE 289

(2012)3 SCALE 534

(2011) 6 SCALE 220

(2007) 7 SCC 689

MSM,J cc_1757_2021

31. We are of the considered opinion that once a direction is issued by a competent Court, it has to be obeyed and implemented without any reservation. If an order passed by a Court of Law is not complied with or is ignored, there will be an end of Rule of Law. If a party against whom such order is made has grievance, the only remedy available to him is to challenge the order by taking appropriate proceedings known to law. But it cannot be made ineffective by not complying with the directions on a specious plea that no such directions could have been issued by the Court. In our judgment, upholding of such argument would result in chaos and confusion and would seriously affect and impair administration of justice. The argument of the Board, therefore, has no force and must be rejected.

32. The matter can be looked at from another angle also. It is true that while granting a relief in favour of a party, the Court must consider the relevant provisions of law and issue appropriate directions keeping in view such provisions. There may, however, be cases where on the facts and in the circumstances, the Court may issue necessary directions in the larger interest of justice keeping in view the principles of justice, equity and good conscience. Take a case, where ex facie injustice has been meted out to an employee. In spite of the fact that he is entitled to certain benefits, they had not been given to him. His representations have been illegally and unjustifiably turned down. He finally approaches a Court of Law. The Court is convinced that gross injustice has been done to him and he was wrongfully, unfairly and with oblique motive deprived of those benefits. The Court, in the circumstances, directs the Authority to extend all benefits which he would have obtained had he not been illegally deprived of them. Is it open to the Authorities in such case to urge that as he has not worked (but held to be illegally deprived), he would not be granted the benefits? Upholding of such plea would amount to allowing a party to take undue advantage of his own wrong. It would perpetrate injustice rather than doing justice to the person wronged. We are conscious and mindful that even in absence of statutory provision, normal rule is 'no work no pay'. In appropriate cases, however, a Court of Law may, nay must, take into account all the facts in their entirety and pass an appropriate order in consonance with law. The Court, in a given case, may hold that the person was willing to work but was illegally and unlawfully not allowed to do so. The Court may in the circumstances, direct the Authority to grant him all benefits considering 'as if he had worked'. It, therefore, cannot be contended as an absolute proposition of law that no direction of payment of consequential benefits can be granted by a Court of Law and if such directions are issued by a Court, the Authority can ignore them even if they had been finally confirmed by the Apex Court of the country (as has been done in the present case). The bald contention of the appellant-Board, therefore, has no substance and must be rejected.

In The State of Bihar vs. Rani Sonabati Kumari7, the

Hon'ble Supreme Court while dealing with violation of order passed

under Order XXXIX Rules 1 & 2 of Civil Procedure Court, held

AIR 1961 SCC 221

MSM,J cc_1757_2021

that, "a party proceeded against Order XXXIX Rule 2(3) of C.P.C for

disobedience of an order of injunction cannot be held to have

willfully disobeyed the order provided two conditions are satisfied

viz., (1) that the order was ambiguous and was reasonably capable

of more than one interpretation (2) that the party being proceeded

against in fact did not intend to disobey the order, but conducted

himself in accordance with his interpretation of the order. The

question whether a party has understood an order in a particular

manner and has conducted himself in accordance with such a

construction is primarily one of-fact, and where the materials

before the Court do not support such a state of affairs, the Court

cannot attribute an innocent intention based on presumptions, for

the only reason, that ingenuity of Counsel can discover

equivocation in the order which is the subject of enforcement.

Though undoubtedly proceedings under Order XXXIX Rule 2(3) of

C.P.C have a punitive aspect - as is evident from the contemnor

being liable to be ordered to be detained in civil prison, they are in

substance designed to effect the enforcement of or to execute the

order. This is clearly brought out by their identity with the

procedure prescribed by Order XXI Rule 32 of C.P.C for execution

of a decree for permanent injunction. No doubt the State

Government not being a natural person could not be ordered to be

detained in civil prison, On the analogy of Corporations; for which

special provision is made in Order XXXIX Rule V C.P.C, but

beyond that, both when a decree for a permanent injunction is

executed and when an order of temporary injunction is enforced

the liability of the State Government to be proceeded against

appears to us clear."

MSM,J cc_1757_2021

Learned counsel for respondent - contemnor relied on "State

of Jammu and Kashmir v. Mohd. Yaqoob Khan" (referred

supra), wherein the Supreme Court held as follows:

"We find great force in the argument of Mr. Salve that so long the stay matter in the writ petition was not finally disposed of, the further proceeding in the contempt case was itself misconceived and no orders therein should have been passed. Mr. Bhandare appearing on behalf of the writ petitioner, who is respondent before us, has strenuously contended that the orders passed in the contempt proceedings should be treated to have disposed of the stay matter in the writ petition also. He laid great emphasis on the fact that the counsel for the respondents in the writ petition had been heard before the orders were issued. He invited our attention to the merits of the claim. It is argued that the order .dated March 19,1990 must, in the circumstances, be treated to have become final and, therefore, binding on the State and the High Court was right in issuing the further direction by way of implementation of earlier order.

We do not agree. The scope of a contempt proceeding is very different from that of the pending main case yet to be heard and disposed of (in future). Besides, the respondents in a pending case are at a disadvantage if they are called upon to meet the merits of the claim in a contempt proceeding at the risk of being punished. It is, therefore, not right to suggest that it should be assumed that the initial order of stay got confirmed by the subsequent orders passed in the contempt matter. We, therefore, hold that the High Court should have first taken up the stay matter without any threat to the respondents in the writ case of being punished for contempt. Only after disposing it of, the other case should have been taken up. It is further significant to note that the respondents before the High Court were raising a serious objection disputing the claim of the writ petitioner. Therefore, an order in the nature of mandatory direction could not have been justified unless the Court was in a position to consider the objections and record a finding, prima facie in nature, in favour of the writ petitioner. Besides challenging the claim on merits, the respondent is entitled to raise a plea of non-maintainability of a writ application filed for the purpose of executing a decree. It appears that at an earlier stage the decree in question was actually put in execution when the parties are said to have entered into a compromise. According to the case of the State the entire liability under the decree (read with the compromise) has already been discharged. The dispute, therefore, will be covered by Section 47 of the CPC. It will be a serious question to consider whether in these circumstances the writ petitioner was entitled to maintain his application under Article 226 of the Constitution at all. We do not want to decide any of these controversies between the parties at this stage except holding that the orders passed in the contempt proceeding

MSM,J cc_1757_2021

were not justified, being pre-mature, and must, therefore, be entirely ignored. The High Court should first take up the stay matter in the writ case, and dispose it of by an appropriate order. Only thereafter it shall proceed to consider whether the State and its authorities could be accused of being guilty of having committed contempt of Court."

The present case is not identical to the facts of the above

judgment for the reason that the interim order was passed in the

present case after hearing both the counsel for the petitioners and

learned Government Pleader, it was not ex parte order. Hence, by

applying the principle laid down in the above judgment, the

contempt case cannot be closed.

In the present facts of the case, respondent herein continued

respondent Nos.2 to 4 in the writ petition, as Associate Professors

in Kurnool Medical College though the proceedings, by which they

were posted, were suspended. Since it is a motivated act of

contemnor prima facie to accommodate respondent Nos.2 to 4 in

the writ petition in the next panel year as Associate Professors, in

view of the law declared by the Apex Court in the judgments

(referred supra), this Court has no option except to punish the

contemnor herein for wilful violation of order of this Court.

As discussed above, and in view of the findings recorded by

me in the above paragraphs, Respondent/contemnor is liable for

punishment as per Section 12 of the Contempt of Courts Act,

1971.

In the result, contempt case is allowed, directing the

Respondent/Contemnor - Dr. M.Raghavendra Rao, Director of

Medical Education, Andhra Pradesh, to undergo simple

imprisonment for a term of three (03) months and to pay a fine of

Rs.2,000/- (Rupees two thousand only). In the event of failure to

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pay fine of Rs.2,000/-, Registrar (Judicial) is directed to send copy

of the order to the District Collector concerned for recovery of

amount of fine under the Andhra Pradesh Revenue Recovery Act,

1864 and by following procedure as per law.

Respondent/Contemnor - Dr. M.Raghavendra Rao, Director

of Medical Education, Andhra Pradesh is directed to appear before

the Registrar (Judicial), High Court of Andhra Pradesh, on

25.04.2022. On his appearance, the Registrar (Judicial) shall

commit him to civil prison in accordance with the order passed

above.

Consequently, miscellaneous applications pending if any,

shall stand closed.

_________________________________________ JUSTICE M. SATYANARAYANA MURTHY 22.04.2022 Ksp

After pronouncing the above order, learned counsel for

Respondent/Contemnor requested this Court to suspend the above

order, so as to enable him to prefer an appeal.

At request of the learned counsel for Respondent/

Contemnor, the above order is suspended for a period of one (01)

week to prefer appeal(s). In case no appeal(s) is/are preferred or no

stay is granted by the Appellate Court in the appeal, if any

preferred, Respondent/Contemnor shall surrender before Registrar

(Judicial), High Court of Andhra Pradesh on 29.04.2022 before

05.00 p.m. to undergo sentence as stated supra.

_________________________________________ JUSTICE M. SATYANARAYANA MURTHY Date:22.04.2022 Note: Issue C.C. today.

B/o Ksp