Dr. Prashanta Padmanabha Amin vs R.N. Sheetal Wad
2006 Latest Caselaw 952 Del

JUDGMENT

Gita Mittal, J.

1. By this contempt petition, the petitioner is complaining of disobedience of the order dated 12th April, 2002 passed by this Court disposing of Writ Petition (Civil) No. 2787/98 in the following terms:

Learned counsel for the petitioner submits that the only surviving question in this writ petition is with regard to the petitioner not coming within the eligibility criteria for admission to the under graduate medical course as he has not obtained 50% at the 10+2 level. Learned counsel for the petitioner submits that the matter is no longer res integra and has been covered by the judgment of the Supreme Court in Medical Council of India v. Indian Doctors from Russia Welfare Associations and Ors. reported at 2002(2) SCALE 521. Learned counsel has drawn my attention to para 5-b which recognises the various categories of persons, who had not been granted provisional registration for the deficiencies pointed out therein. The said para reads as under:

(b) Those who did not fulfill the minimum eligibility criteria for joining medical course laid down by MCI at the time of their admission in the medical institutions abroad, particularly in the erstwhile States of USSR; and

The Supreme Court has taken note of the guidelines placed by the Government of India. The case would be covered by guidelines A-II, which is as under:

where students who did not meet the minimum admission norms of MCI for joining under graduate medical course, were admitted to foreign institutes recognised by MCI, this irregularity be condoned. In other words, the degrees of such students be treated as eligible for registration with MCI.

Counsel for the respondent Mr. Rahul Singh states that the respondent would abide by the aforesaid judgment and guide lines as laid by the Central Government before the Court.

MCI shall process the case of the petitioner for registration in terms of the above judgment and guide lines within four weeks from today.

Writ petition stands disposed of in the above terms.

2. This writ petition had been filed by the petitioner against the Medical Council of India through its Secretary and the Registrar of the Karnataka Medical Council.

3. From the perusal of the order, it is evident that on a statement made by the counsel for the Medical Council of India (respondent No. 1 in the writ petition) who had stated that the respondent would abide by the judgment of the Apex Court reported at 2002(2)SCALE 521 (also reported at ), the court directed that the Medical Council of India should process the case of the petitioner for registration in terms of the judgment and the guidelines within four weeks of the passing of the order. The writ petition was disposed of in the above terms.

4. The jurisdiction of the court while considering a petition under the Contempt of Courts Act, 1971 is restricted. However in the instant case, the respondent has urged pleas relating to merits of the matter and raised issues which were never placed before any court prior hitherto and it has therefore become necessary to consider these issues.

5. So far as the basic facts relating to the education of the petitioner are concerned, there is no dispute. The petitioner is an Indian citizen who had qualified his class Xth examination from the Maharashtra State Board of Secondary Education in the 1st Division in the year 1980. He also qualified in his class 11 examination scoring 60% marks wherein he had taken English, Marathi, Mathematics, Physics, Chemistry and Biology as his subjects in the Sangameshwara College, Sholapur.

6. So far as his class 12th examination is concerned, the petitioner has contended that he was a victim of the Cholera epidemic in the city of Sholapur in February - March, 1982 which impacted his performance in the examination which he took in March, 1982 and he could not clear the Marathi language and Mathematics exams.

7. In 1981 the petitioner applied under the Indo-Soviet Cultural Exchange Scheme seeking to pursue medical education in USSR. The petitioner has pointed out that according to the applicable rules in USSR at the relevant time, any Russian or foreign student who has completed 10 years of schooling was eligible to get entry to the medical course directly on the basis of the marks secured and interview. If the foreign student had completed 10 years of schooling outside the USSR, he had to undergo one year's preparatory school course offering the following subjects:

(i) Russian Language;

(ii) History;

(iii) Physics

(iv) Chemistry;

(v) Biology and

(vi) Mathematics

After successfully qualifying in the preparatory course alone he would be given admission to the medical course. If the foreign student had not completed ten years of schooling in India he had to join the Russian school to complete ten years schooling and thereafter stake his claim for the medical course. 8. Therefore, according to the applicable rules, the petitioner has contended that he was eligible for admission to the medical school in erstwhile USSR as he had already completed 11 years of schooling and was so admitted in the preparatory school under the Veravan University. The petitioner qualified the preparatory school course in the required subjects in the USSR with 85% marks. Thereafter he was subjected to an interview and selected for the medical course in the Veravan University. The petitioner therefore had not only passed his pre medical course of one year but had obtained distinction. He was admitted to the medical course at the Tashkent State Medical Institute. The degree awarded by this institute known as the MD Physician is a duly recognised medical qualification under Schedule III, part II of the Indian Medical Council Act, 1956 as per Section 13(3) of the enactment.

The petitioner has submitted that he was selected under the Indo Soviet Cultural Exchange Programme and was given a monthly stipend of 90 roubles by the USSR Government and 250 Deutsche Marks by the Indian Embassy.

9. The course consisted of an in-house internship in the final year before completion of the course. It was only on successful completion of this internship that the medical degree is conferred by the university. The petitioner had therefore completed internship also of one year prior to award of the degree.

10. The petitioner points out that at the relevant time in the 1980's when the petitioner was seeking admission to the medical course, even in India there was no Common Entrance Test System. Entry to the medical course was only on the basis of the marks scored in the qualifying examination.

11. The petitioner was awarded the title of Doctor of Medicine and was given the degree of MD Physician by the University in 1990 and thereafter he applied for registration to the Karnataka Medical Council on 13th March, 1991. The Karnataka Medical Council thereupon wrote to the Medical Council of India informing it about the petitioner's claim for registration. The petitioner has contended that he did further internship between 17th June and 20th October, 1991.

12. The Directorate of Medical Education, Bangalore vide its letter dated 12th June, 1991 at the instance of the Medical Council of India, required the petitioner to undergo further training as an intern. He was informed that he has to do internship for one year to get permanent registration after award of his degree. In terms of this requirement the petitioner completed one year internship again from 1991 to 1992 at the Second Tashkent State Medical Institute, Tashkent, Uzbekistan.

13. In addition to complying with the directive of the Medical Council, the petitioner also did his post graduation course in the Moscow Medical Stomatological Institute, USSR and defended his PhD thesis at the Moscow Regional Research Clinical Institute. On 15th January, 1996 upon successful completion of the curriculum and course, he was consequently also awarded the Doctor of Philosophy title in Orthpeadics and Formertology.

14. The petitioner has contended that the Ph.d (Doctor of Philosophy) degree of the Moscow Medical Stomatological Institute obtained by the petitioner is also duly recognised under the Medical Council of India Act under its Schedule and is considered equivalent to the postgraduate medical qualification.

15. Therefore, the petitioner applied for permanent registration on 7th February, 1996 with his additional qualification and completion of the further internship as required by the medical council after the award of his graduate degree. The petitioner asserted his claim fortified with the additional Ph.d qualification also obtained by him.

16. However by a letter dated 25th September, 1996 of the Medical Council of India, the petitioner was for the first time denied registration on the ground he had not passed the higher secondary examination with 50% aggregate marks for fulfillling its eligibility criteria for entrance to the admission course in India. The petitioner contends that in order to obviate any further objection, even though he was not required to do so as he fulfillled the eligibility criteria for admission to the USSR medical courses, the petitioner still appeared in the higher secondary examination in October 1996 and successfully completed the papers which he had not qualified earlier.

17. It appears that the Medical Council of India had taken an executive decision on the 17th September, 1997 prohibiting certain candidates from enrolment on the medical register despite possessing the recognised medical qualifications. This decision was in the following terms:

a) The students who complete their medical degree course of less than 6 years duration from institutions in erstwhile USSR shall not be eligible for registration because of the fact that the duration of MD(Physician) course is 6 years, after one year preparatory/language course.

b) The students completing successfully total six years clinical MD(Physician) course in an MCI recognised institute i.e. obtaining recognised MD(Physician) degree on or after 1.7.97 shall have to undergo one year internship after obtaining the qualification. Such candidates only shall be eligible for permanent registration Under Section 13(3) of the MCI Act, 1956 provided they meet the other criteria of the Council laid down with regard to admission for undergraduate medical course.

c) The students who were initially admitted in an institution not recognised by the MCI and later on migrated and obtained the degree from recognised medical institutions in erstwhile USSR will not be eligible for any kind of registration of India.

18. Several persons who had obtained recognised medical qualifications from the universities in the erstwhile USSR, had successfully challenged these directives in writ petitions before Single Bench of this Court. The Division Bench upheld the judgment of the Single Bench. The matter was ultimately carried to the Supreme Court in a Special Leave Petition by the Medical Council of India.

19. On 22nd April, 1998, the Medical Council of India informed the petitioner that as he had failed to secure 50% marks at the 10+2 school level in India prior to his admission to the medical course, his application for registration had not been agreed to and that such eligibility criteria could not be relaxed.

20. According to the petitioner, being an OBC candidate, even as per the Regulations framed by the Medical Council of India, the candidate was required to have twelve years of schooling with only 40% marks in the case of SC/ST/OBC candidates for admissions to medical institutes in India. So far as general candidates were concerned, they required 50% marks to be eligible.

The petitioner had secured 47.3% marks in Physics, Biology and Chemistry.

If English was considered, the petitioner's average came to 49.2% marks.

Therefore, it is submitted that the petitioner had completed twelve years of schooling and had the requisite percentage of marks for his OBC candidature even as per the MCI requirements in India.

21. In these circumstances, on 12th May, 1998 the petitioner was constrained to file the Writ Petition(C) 2787/98 seeking the following prayers:

a) an appropriate writ or writs quashing the impugned order dated 22.04.1998 issued by the respondent No. 1 as being illegal and violative of the fundamental rights of the petitioner; and

b) issue an appropriate writ in the nature of mandamus or any other writ directing the respondent 1 and 2 to give permanent registration to the petitioner by entering his name in the State Medical Register as well as the Indian Medical Register;

22. In view of the directions of the Apex Court, when the writ petition (Civil) No. 2787/1998 filed by the petitioner came up for hearing on 12th April, 2002, as noticed before, a statement was made by learned Counsel for the Medical Council of India that the MCI could abide by the judgment and guidelines laid by the Apex Court. Based on the judgment of the Apex Court and the statement made on behalf of the respondent, this Court granted the writ petition and issued a mandamus directing the MCI to process the case of the petitioner for registration in terms of the judgment and guidelines within four weeks.

23. It is noteworthy that the counsel for the petitioner had placed clear reliance on the judgment of the Supreme Court more specifically on para 6(A)(ii) claiming condensation of the deficiency of not meeting the minimum admission norms of the MCI as were applicable to candidates in India. This eligibility criterion consisted of both i.e. not possessing twelve years of schooling as well as not securing 50% or the stipulated percentage of marks in the class 12th examination. These deficiencies were covered under the expression 'minimum admission norms of MCI for joining undergraduate medical course' and were required to be condoned. This was the understanding even of the Medical Council of India and no objection was taken on 12th April, 2002 when the matter was taken up for consideration. Thus the MCI also had clearly accepted the fact that the petitioner would be covered under the judgment of the Apex Court and would be entitled to the benefit of the condensation.

24. The mandamus issued by the court was accepted by the Medical Council of India. No appeal thereto was filed. No application seeking any variation, modification or clarification of the directions made by the court have been filed till date. The directions and the order made by this Court on 12th April, 2002 clearly attained finality.

25. The petitioner has made a grievance that despite the clear directions of the Apex Court to either accept or refuse applications for registration within 15 days, the Medical Council of India issued a letter to the petitioner only after 21 days of the passing of the order on 12th April, 2002. On 3rd May, 2002, the petitioner was directed to furnish all documents afresh even though these had been submitted earlier.

26. The directions of the Apex Court were explicit requiring the Medical Council of India to either accept or reject applications within 15 days. This court permitted the respondent the period of four weeks with effect from 12th April, 2002 to process the application of the petitioner for registration in terms of the judgment of the Apex Court. The respondent accepted the directions made by this Court. Instead of strictly complying with the time bound stipulations on 19th June, 2002 and issuing a permanent registration certificate, the respondent issued a provisional registration certificate purporting to be issued under Section 25(2) of the Indian Medical Council Act, 1956. This certificate contained the following stipulations:

1. The provisional registration certificate is valid for 12 months only. the holder shall be entitled to practice medicine in the approved institution for the purpose of such training and for no other purpose.

2. The certificate is to be surrendered in origin at the time of Final Registration.

3. (M) and (F) indicates (Male) and (Female) respectively.

27. The petitioner had immediately objected to the action of the Medical Council of India on receipt of the certificate by his letter dated 26th June, 2002 requesting for issuance of a permanent registration. However, it has been stated before the court that apprehensive of losing the opportunity offered even on this certificate, the petitioner immediately joined the Wenlock District Hospital, Mangalore for again undergoing a further internship for a period of one year. The petitioner completed this period of internship from 16th July, 2002 till 16th July, 2003 and armed with the certificate of completion of this internship again approached the Medical Council of India for issuing him the regular registration. As his request fell on deaf ears, the petitioner was constrained to issue a legal notice dated 21st August, 2003 calling upon the respondent to issue a permanent registration certificate and informing the respondent that action for initiation of proceedings under the Contempt of Court Act would be initiated on a failure to issue the regular registration certificate Along with a claim of damages. Aggrieved by the failure of the respondent to abide by the directions made by this Court on 12th April, 2002 or to pay any heed to the request and notice issued at the instance of the petitioner, the petitioner has filed the present petition on or around the 15th October, 2003 praying for initiation of contempt proceedings against the respondent, who was the then Secretary of the Medical Council of India for willful and deliberate disobedience of the orders of this Court dated 12th April, 2002 and for appropriate punishment. The petitioner has also prayed for damages to be awarded at the rate of Rs. 5 lakh per year after 12th April, 2002 with costs of the proceedings.

28. The respondent has appeared in answer to the notice to show cause and has vehemently opposed the petition. It is contended by Mr. Maninder Singh, learned Counsel appearing for the respondent that having issued the provisional registration certificate on 17th June, 2002, the respondent had complied with the directions made by this Court.

29. The principle defense to the present petition is based on certain instances relating to other candidates, who approached the Apex Court after the passing of the judgment dated 8.3.2002 reported at 2002 (2) SCALE 521. The defense taken by the respondent can be briefly enumerated hereunder:

(i) the respondent has placed reliance on an application filed by one Sanjay Kumar seeking clarification from the Apex Court in IA 9-10/2002 filed in CA 2779/2000 entitled Medical Council of India v. Indian Doctors from Russia Welfare Association and Anr. According to the respondent this applicant's application was dismissed by the Apex Court on 22nd October, 2002.

(ii) It is further submitted on behalf of the respondent that in any case, the case of one Jharna Roy who had approached the Apex Court by a contempt petition was pending and as such the Medical Council of India was required to await the decision of the Apex Court in the contempt petition filed by Jharna Roy

(iii) that the present contempt petition was filed on 15th October, 2003 after expiry of more than 1 year and 4 months from the date of issuance of the provisional registration certificate on 19th June, 2002. In view of the pronouncement of the Apex Court in Pallav Seth v. Custodian and Ors., the contempt petition which is filed after expiry of one year is not maintainable.

(iv) Several other persons similarly placed as the petitioner as one Rahul Singla, Jharna Roy all filed petitions seeking invocation of contempt proceedings against the Medical Council of India which were dismissed by the Apex Court and for this reason as well the petitioner's petition has to be dismissed.

(v) the Medical Council of India has itself sought clarification from the Apex Court, as according to the Medical Council of India, the order dated 8th March, 2002 related to those candidates who had actually passed the 10+2 examination but with less than 50% marks. This explanation of the Medical Council of India was accepted by the Apex Court in the order dated 21st November, 2003 when the contempt petition filed by Jharna Roy was dismissed.

30. On behalf of the respondent reliance is also placed on an opinion dated 17th August, 2003 claimed to have been received by the Medical Council of India from a Senior Advocate for taking appropriate action in the light of the judgment of the Apex Court.

31. The respondent in its reply has also placed reliance on the amendment effected to the Indian Medical Council Act, 1956 whereby Section 13(4)(A) and 13(4)(B) which have been incorporated with effect from 3rd September, 2001.

32. Having considered the rival contentions and having perused the available record, it is to be noticed that the Apex Court considered the matter from every possible angle before finally making the order dated 8th March, 2002. The Central Government laid before the court several disabilities of persons who had obtained medical qualifications from universities in erstwhile USSR which included, inter alia, that amongst the persons seeking registration were ; (i) those students who had obtained degrees where the total duration of study in recognised institutions was less than 6 years i.e. where part of the study had been undergone in unrecognised institutions; (ii) students who did not meet the minimum admission norms of Medical Council of India for joining under graduate medical courses in India, were admitted to foreign institutes recognised by the Medical Council of India; (iii) students who have taken admission abroad prior to 15th March, 2002 and are required to qualify the screening test for the registration as per the provisions of the Screening Test Regulations, 2002; (iv) categories noted at serial number 1 and 2 above and whose entire period of study has been in a medical college not recognised by the Medical Council of India.

33. After fully considering the matter, the court granted approval to the guidelines which were placed before it by the Government . These guidelines clearly provided that where students who did not meet the minimum admissions norms of the Medical Council of India for under graduate medical course were admitted to foreign institutes recognised by the Medical Council of India, this irregularity would be condoned. It was specifically directed that in other words, the degrees of such students would be treated as eligible for registration. The pronouncement of the Apex Court dated 8th March, 2002 is entitled Medical Council of India v. Indian Doctors From Russia Welfare Associations.

In this behalf, the Apex Court directed thus:

6. In order to regulate the grant of registration to such persons who have completed their degree abroad prior to 15-3-2001, the following guidelines are placed before this Court by the Government of India:

(A) The case of all persons who applied for registration to MCI prior to 15-3-2001 shall be dealt with according to the provisions of the Act as existing prior to the commencement of the IMC (Amendment) Act, 2001 subject to the following:

(i) Those students who obtained degrees where the total duration of study in recognised institutions is less than six years (i.e. Where a part of the study has been in unrecognised institutions, or the total length of study in a recognised institution is short of six years), shall be granted registration by MCI provided that the period of shortfall is covered by them by way of additional internship over and above the regular internship of one year. In other words, for such categories of students, the total duration of study in a recognised institution plus the internship, would be seven years, which is the requirement even otherwise.

(ii) Where students who did not meet the minimum admission norms of MCI for joining undergraduate medical course, were admitted to foreign institutes recognised by MCI, this irregularity be condoned. In other words, the degrees of such students be treated as eligible for registration with MCI.

(B) All students who have taken admission abroad prior to 15-3-2002 and are required to qualify the screening test for their registration as per the provisions of the Screening Test Regulations, 2002 shall be allowed to appear in the screening test even if they also come in the categories of circumstances contained in (A)(ii) above, as the relaxation contained therein would also be applicable in their case. In other words, any person at present undergoing medical education abroad, who did not conform to the minimum eligibility requirements for joining an undergraduate medical course in India laid down by MCI, seeking provisional or permanent registration on or after 15-3-2002 shall be permitted to appear in the screening test in relaxation of this requirement provided he had taken admission in an institute recognised by MCI. This relaxation shall be available to only those students who had taken admission abroad prior to 15-3-2002. From 15-3-2002 and onwards all students are required to first obtain an Eligibility Certificate from MCI before proceeding abroad for studies in Medicine.

(C) The categories of students not covered in (A)(i) and (ii) above and whose entire period of study has been in a medical college not recognised by MCI, will be allowed to appear in the screening test for the purpose of their registration provided they fulfill all the conditions laid down in the IMC (Amendment) Act, 2001. In other words, the qualification obtained by them must be a qualification recognised for enrolment as medical practitioner in the country in which the institution awarding the same is situated and they must be fulfillling the minimum eligibility qualification laid down by MCI for taking admission in an undergraduate medical course in India. They shall not be entitled to any relaxation.

7. In the special features and circumstances arising in these cases, it is unnecessary to consider the various contentions urged on behalf of the parties but we propose to dispose of these matters by approving the guidelines set forth above in exercise of powers under Article 142 of the Constitution and these guidelines will be applicable to all such persons who are similarly situate, whether they are parties before this Court or not. In respect of those who have already applied for registration to MCI, the same shall be granted or refused within a period of 15 days from today in terms of this order. On grant of such registration, the students shall undergo the internship or the houseman ship, if needed. It is made clear that these guidelines approved by us are by way of a one-time measure. Future cases will be governed by the revised Regulations framed by MCI as approved by the Government.

8. The orders of the High Courts shall stand displaced by this order and these appeals shall stand disposed of accordingly. Any proceeding pending in any High Court relating to these matters shall stand withdrawn to this Court and disposed of in the same terms as aforesaid.

34. The directions of the Apex Court were explicit and unambiguous and incapable of any further interpretation. The court had put its seal of imprimatur on the guidelines formulated by the Government and the Medical Council of India and placed before it. So far as candidates who were not meeting the minimum admission norms of MCI for joining undergraduate medical courses in India and were admitted to foreign institutes recognised by MCI, the recommendation that this irregularity be condoned and the degrees of such students be treated as eligible for registration stood approved by the court.

35. It having been so clearly held and directed, there was no option regarding grant of registration available with the Medical Council of India in respect of the candidates who suffered from this disability.

36. It would be noteworthy to examine the existing statutory position at the time when the petitioner had returned to India with the medical qualification. In this behalf, Section 13 which provides for recognition of medical qualification granted by a medical institution abroad and Section 15 governing the right of persons possessing qualifications in the Schedule to be enrolled are relevant. In order to appreciate the issue raised in the present petition the same deserves to be noticed in extenso and reads as hereunder:

13. xxx xxx

13(3). The medical qualifications granted by medical institutions outside India before such date as the Central Government may by notification in the Official Gazzette, specify which are included in Part II of the Third Schedule shall also be recognised medical qualifications for the purposes of this Act, but no person possessing any such qualification shall be entitled to enrolment on any State Medical Register unless he is a citizen of India and has undergone such practical training after obtaining that qualification as maybe required by the rules or regulations in force in the country granting the qualification, or if he has not undergone any practical training in that country, he has undergone any practical training in that country, he has undergone such practical training as maybe prescribed.

xxxx xxxx

15(1). Subject to the other provisions contained in this Act, the medical qualifications included in the Schedule shall be sufficient qualification for enrolment on any State Medical Register.

xxx xxx

23. Registration in the Indian Medical Register - The Registrar of the Council may, on receipt of the report of registration of a person in a State Medical Register or on application made in the prescribed manner by any such person, enter his name in the Indian Medical Register.

37. It is well settled that only if a person is enrolled with either the State Medical Council or the Medical Council of India, he is eligible to practice in the field of medicine in this country.

38. So far as the amendment to the Medical Council of India Act is concerned, it is admitted that the same came into effect on 3rd September, 2001. The Indian Medical Council Amendment Act passed by the legislature on 3rd September, 2001 permitted the following amendments to be incorporated:

2. In the Indian Medical Council Act, 1956 (hereinafter referred to as the Principal Act), in Section 13---

(a) in Sub-section (3), after the words 'granted by medical institutions outside India', the words 'before such date as the Central Government may, by notification in the Official Gazette, specify' shall be inserted:

(b) in Sub-section (4), the following provision and Explanation shall be inserted at the end, namely:

Provided that after the commencement of the Indian Medical Council(Amendment) Act, 2001, no such amendment shall be made in Part II of the Third Schedule to include any primary medical qualification granted by any medical institution outside India:

Provided further that nothing contained in the first proviso shall apply to inclusion in Part II of the Third Schedule any primary medical qualification granted by any medical institution outside India to any person whose name is entered in the Indian medical Register.

Explanation---For the purposes of this sub-section, 'primary medical qualification' means any minimum qualification sufficient for enrolment on any State Medical Register or for entering the name in the Indian Medical Register:

(c) after Sub-section (4), the following sub-sections shall be inserted, namely:

(4A) A person who is a citizen of India and obtains medical qualification granted by any medical institution in any country outside India recognised for enrolment as medical practitioner in that country after such date as may be specified by the Central Government under Sub-section (3), shall not be entitled to be enrolled on any Medical Register maintained by a State Medical Council or to have his name entered in the Indian Medical Register unless he qualifies the screening test in India prescribed for such purpose and such foreign medical qualification after such person qualifies the same screening test shall be deemed to be the recognised medical qualification for the purposes of this Act for that person.

(4B) A person who is a citizen of India shall not after such date as may be specified by the Central Government under Sub-section (3), be eligible to get admission to obtain medical qualification granted by any medical institution in any foreign country without obtaining an eligibility certificate issued to him by the Council and in case any such person obtains such qualification without obtaining such eligibility certificate, he shall not be eligible to appear in the screening test referred to in Sub-section (4A):

Provided that an Indian citizen who has acquired the medical qualification from foreign medical institution or has obtained admission in foreign medical institution before the commencement of the Indian Medical Council (Amendment) Act, 2001 shall not be required to obtain eligibility certificate under this sub-section but, if he is qualified for admission to any medical course for recognised medical qualification in any medical institution in India, he shall be required to qualify only the screening test prescribed for enrolment on any State Medical Register or for entering his name in the Indian Medical Register.

(4C) Nothing contained in Sub-sections (4B) shall apply to the medical qualifications referred to in Section 14 for the purposes of that section.

39. The legislature did not intend this enactment to be retrospective. Therefore the requirement of the compliance with the explanation to Sub-section (4) of Section 13 of the Medical Council of India with regard to the issuance of an eligibility certificate by the Medical Council of India before admission and qualification of the screening test after obtaining the medical qualification by the candidate coming back with the medical qualification from abroad would apply to candidates who were so seeking admission or registration after 3rd September, 2001.

40. Admittedly the petitioner had completed his medical qualification in the year 1991 and the requirements of this statutory amendment could not be made applicable to the petitioner. The case of the petitioner has to be examined in the light of the then applicable statute and regulations. The same required a person to be a citizen of India having a recognised medical qualification and having completed internship in terms of the rules of the country where he was granted by recognised medical qualification.

41. I find that the petitioner has placed before this Court the counter affidavit of the Medical Council of India filed in WP(C) No. 2787/1998. I find that the opposition to the petitioner's registration in the present proceedings is on the pleas which were never taken before this Court in the writ proceedings and possibly cannot be permitted to be taken at this stage.

42. Coming to the instances cited by the respondent as a defense to the present petition, in the counter affidavit filed before this Court, it is stated by the respondent that 'the case of the Medical Council of India was that the relaxation/concession extended by the Hon'ble Supreme Court through its judgment dated 8th March, 2002 is only for individuals with one disability and that the same are not available to a candidate whose case falls with' more than one category of disabilities.

43. The distinction between Sanjay Kumar's case and the present petitioner is admitted thereby by the respondent himself as the petitioner admittedly falls within the only one disability noticed by the Apex Court in para 6A(ii). To the same effect, are the cases cited of Nityanand Ghosh(Civil Contempt No. 489- 490/2002 in CA 2804-2805/2005 and Dr. Sanjiv Kumar Bansal(Contempt Petition No. 335/2002).

44. So far as Manish Aggarwal, applicant in contempt petition No. 339/2002 in TP(C)103/2002, is concerned, the Medical Council of India had pointed out that the candidate had not submitted his original 10+2 certificate and his case could not be processed inasmuch as the Medical Council of India had received large number of applications where either the 10+2 certificate or in some cases even the medical degree certificates had been found to be fake and fabricated. It is pointed out that in these circumstances the court had dismissed the petition on 21st November, 2003.

45. It is noteworthy that in all the aforestated cases, the respondent has not placed the pleadings before the Apex Court or the orders passed by the Supreme Court before this Court. However the objection made by the Medical Council of India in respect of Manish Aggarwal has not been raised in the case of the present petitioner.

46. At this stage it is necessary to notice the petition filed by one Rahul Singla being CCP 309/2003 in CA 2779/2000. In this case, Rahul Singla had complained of failure of the Medical Council of India to comply with the directions of the Apex Court in its judgment given on 8th March, 2002. In its counter affidavit the respondent stated thus:

13. It is submitted that in accordance with the opinion of the learned senior Advocate, the office of the Council by a communication dated 20.10.2003, a copy whereof is annexed as Annexure R-5, had required the petitioner to submit the information that he having not passed the 10+2 standard and had obtained 39.2% marks in the 11th standard, had disclosed this fact to the University concerned and he was still granted admission by the said University in the medicine course. No response had been received from the petitioner.

Vide an order passed on 16th February, 2004, the Apex Court held that no case for contempt is made out in these cases and the proceedings were accordingly dropped. In this case the Medical Council had stated that it was still examining the papers.

47. One Dr. Jharna Roy had made a complaint in similar circumstances and had filed contempt petition No. 26/2003 in CA 2779/2000. Dr. Jharna Roy, it is contended, did not fulfill the minimum eligibility criteria.

48. The Medical Council of India filed a counter affidavit in these proceeding, which has been placed on the record of the present case. Learned counsel for the respondent has strongly relied upon this affidavit. I find that in this affidavit the Medical Council of India had itself stated in paras 14 and 15 as follows:

14. The MCI is initiating steps for considering and deciding all pending applications in accordance with the opinion rendered to it by the learned senior counsel. This process will be completed as expeditiously as possible. The MCI is also duty bound to carry out all such directions which may be issued by this Hon'ble Court. The MCI would also require the petitioner to establish that the requirement of passing higher secondary/senior secondary 10+2 examination was not a requirement in the University where the petitioner had taken admission and this fact of the petitioner not passing this school examination had been disclosed to the University and despite such a disclosure the University had granted admission to the petitioner.

15. That the MCI shall take necessary steps to complete the process in relation to the petitioner without taking any undue time.

49. It was upon consideration of this deposition by the Medical Council of India that it was processing the application for registration that vide an order passed on 21st November, 2003, the court recorded that no case for contempt was made out in these cases and the proceedings were dropped.

50. From a perusal of the available record, I find that Sanjay Kumar who filed the IA 9-10/2002 in CA 227/2000 was admittedly suffering from more than one disability and his case had admittedly fallen in the disabilities noticed in para 6A(i) and 6A(ii) as noticed in the judgment.

51. At this stage, it is necessary to examine the opinion of the learned senior counsel which the Medical Council of India claimed to have relied upon. No copy thereof has been placed on record only some extracts have been reproduced in their counter affidavit dated 11th February, 2004 The Medical Council of India has stated that it has received an opinion of a learned senior Advocate dated 17th August, 2003 with reference to the category of those candidates who did not pass the senior secondary examination prior to their admission to the medical courses. It has been stated that the following advice had been rendered by the counsel:

...7) In my opinion, in all such matters as were the subject matter of the Central Government guidelines and therefore the subject matter of the judgment of the Supreme Court, the Querist must strictly abide by the judgment of the Supreme Court, irrespective of any provision in its Regulations, since the Court had expressly stated that it was approving the guidelines in exercise of powers under Article 142 of the Constitution.

8) The problem that arose in the Supreme Court was in relation to students, who had studied in unrecognised colleges for a substantial part of the term or had undergone compressed courses---lesser than the course prescribed. There was also certain students who did not meet the minimum admission norms in respect of which the Court had observed as under:

(ii) where students who did not meet the minimum admission norms of MCI for joining undergraduate medical course, were admitted to foreign institutes recognised by MCI, this irregularity be condoned. In other words, the degrees of such students be treated as eligible for registration with MCI.

9) In my opinion, a distinction will have to be made between those students who did not have biology in their 10th standard and others who have not passed '10+2' examination at all or who have passed '10+2' from unrecognised Boards or obtained fake certificates. The minimum admission norms of MCI for joining undergraduate course, in my opinion, should really be understood as pertaining to the subjects in the 10+2 examination and the requirements as to the subjects etc. Any deficiencies in this regard would have to be condoned. However, the basic underlying premise is that a student has studied in a college from where he has obtained a degree. To get admission into a college, a student has to finish his 'schooling'. In India, the school passing examination is 10+2 and not the 10th Standard. A student, who has not passed the 10th, is not considered as having finished his scholastic education in India. A student with a fake certificate also stands on the same footing.

10) I do not read the observations of the Supreme Court as enabling those who have not even passed their School Examination but somehow managed to get admission in Russian institutions to enroll as Doctors. It is important to note that the defense of the students has always been that the marks requirement of Russian Universities are more liberal than the stringent standards prescribed in India and that the duration of their courses were reduced by increasing the studying hours etc. It has never been contended that the students who had not even passed schools were eligible to study in colleges and obtain degrees. It would appear that a student who has not passed 10+2 has secured admission in a graduation course, it would not only be by misrepresentation to such institution. The students have not established that there is any under graduate course that can be pursued by those who have not even passed 10+2 Board examination.

11) Therefore, in my opinion, the MCI would be within its right to reject the request of those students for enrolment unless they are able to show from the Rules of their Universities from whom they have obtained degrees that passing school was not a requirement for admission to that University, that they had disclosed to the Universities that they had not passed schools and despite this the Universities had granted them admission.

12) If it is established that the Universities had knowingly admitted students who had not even passed school, then, in my opinion, the Querist should grant them provisional registration, at the same time making an appropriate application to the Supreme Court for modification of its orders, and making it clear that the registration is being granted subject to orders of the Supreme Court. If however they are unable to show that the University admitted them knowing that they had not passed school, the Querist would be entitled to question the validity of their degrees themselves, and for this the Querist could directly (or through the Government of India) contact the University and find out the correct status of this degree. It bears emphasis that the Supreme Court order proceeds on the premise that these students have valid degrees duly obtained in accordance with the rules and regulations applicable to the institutions that have conferred these degrees--- the condensation given was from deficiencies in compliance with the MCI regulations....

52. It is also necessary to comment on the reliance placed by the respondent on the opinion which it has received from its counsel. In para 19 of the counter affidavit, without placing before the court the query which was referred to learned senior counsel for opinion, the respondent have extracted a few paragraphs running from paras 7 to 12 of an opinion dated 17th August, 2003. While it is settled legal position that an opinion of an advocate would not in any manner permit the respondent to vary a clear direction of the Apex Court or an order passed by this Court, the reliance on such opinion is clearly misconceived since it has been cited without any reference to the context in which it was rendered. It is not the respondent's case that the statement by its counsel before this Court on 12th April, 2002 or the directions made by the court based thereon were the subject matter of the query to the learned senior counsel.

53. In Bhagwan Singh v. State of Rajasthan (1983) 1 Crl. LJ 477, it was held that the state functionaries cannot disobey the court order on the pretext of taking opinion from law officers or by filing appeals unless they obtain a stay order from the Appellate Court.

54. It is to be noted that the recognised institutions in the erstwhile USSR had required 10 years of schooling without any requirement that the candidate should have passed out of a school. This has been pointed out by the petitioner. The admission to the course is related to number of years of schooling. Even in the opinion relied upon by the respondent it has been noticed that the candidate would be entitled to grant of the request for enrolment if they were able to show from the rules of their universities from whom they have obtained the degrees that passing school was not a requirement for admission to that university, that they had disclosed to the universities that they had not passed schools and despite this the universities had granted them admissions.

55. The Medical Council of India, it appears has filed an application dated 22nd January, 2003 before the Supreme Court in CA No. 2779/2000 which was registered as IA No. 2003 seeking a clarification as to whether the category of candidates mentioned in para 17 of the application would also be entitled for getting the benefit of the concessions/relaxation as per the judgment of the Court dated 8th March, 2002. Para 17 of this application reads thus:

17. That the applicant Medical Council of India most humbly and respectfully submits that it is approaching this Hon'ble Court by the present application for seeking a clarification that whether the candidates who

(i) did not undergo the Senior Secondary education after passing 10th examination and took the admission on 10th standard basis;

(ii) did not have the science subjects, namely, physics, chemistry and biology at all the 10+2 stage i.e. those subjects such as agriculture, history, economics, home science, pharmacy etc.(other than those candidates who passed the 10+2 with physics, chemistry, biology but did not obtain 50% marks);

(iii) did not have biology at all at 10+2 i.e. (other than those candidates who had biology at their 10+2 level but were not able to obtain 50% marks).

(iv) Have submitted their 10+2 certificates to MCI but which have been found either from unrecognised boards or fake certificates.

56. On 4th April, 2003, the Apex Court rejected this application on the ground that the same was wholly unnecessary.

57. The respondent accepted this position when they filed their affidavits in Civil Contempt Petition No. 26/2002 filed by Dr. Jharna Roy on 29th August, 2003.

58. The respondent has relied on its assertions made in Jharna Roy's case when it has filed the affidavit in Rahul Singla's matter.

59. In these circumstances it was the case of the Medical Council of India itself that if the candidate satisfied the requirement of the 10 years schooling period of the university wherefrom it had obtained the recognised medical qualification, the Medical Council of India would have no option but to grant the registration.

60. The Medical Council of India has admittedly granted provisional registration to the petitioner even while it was contesting these applications. The opinion of the learned senior counsel relied upon by the Medical Council of India also stipulated that the candidate was required to have satisfied this requirement. The directions of the Apex Court with regard to condensation of the eligibility requirement of the Medical Council of India for admission to the medical courses in India would have to be condoned in respect of the candidates who were covered by the judgment dated 8th March, 2002.

61. There is no dispute that the petitioner is also so covered. The Medical Council of India had made a statement to this effect on 12th April, 2002 in W.P.(C) No. 2787/1998 when a statement was made that the respondent would abide by the judgment dated 8th March, 2002 of the Supreme Court and the guidelines laid by the Central Government before the court.

62. As I have noticed hereinabove, the directions made by the Apex Court on 8th March, 2002 are clear, explicit, unconditional and unequivocal.

63. There can be no dispute with the proposition urged by Mr. Maninder Singh, learned Counsel for the respondent that by application of doctrine of merger, the subordinate forum's decision merges in the decision of the appellate or revisional forum, modifying, reversing or affirming the decision of the subordinate forum (Re : Kunhayammed and Ors. v. State of Kerala and Anr. ).

It is well settled that its applicability has to be determined keeping in view the nature of the jurisdiction exercised by the superior forum and the contempt or subject matter of the challenge.

64. An order passed by the court has to be read as it exists. No party can possibly add or substract there from or place a construction on the intention of the court based on its defense. So far as dismissal of a petition by a non- speaking order is concerned, it has been held by the Apex Court that the dismissal of even a special leave petition in liming by a non-speaking order does not justify any inference that by necessary implication, the contentions raised in the special leave petition on the merits of the case have been rejected. The court has considered the practice of the Apex Court to entertain petitions and grant leave under Section 136 of the Constitution only in such cases where substantial questions of law of general or public importance are involved and consequently in this behalf has held that dismissal of the special leave petition by a non-speaking order would not operate as a bar against the appellant raising the challenge by resort to proceedings before the High Court under Article 226 of the Constitution of India. In this behalf, reliance can be usefully placed on the pronouncement reported at AIR 1986 SC 1780 Indian Oil Corporation Limited v. State of Bihar and Ors.

65. In JT 1995 (9) SC 112 Yogendra Narain Chowdhury and Ors. v. UOI and Ors., the court further recognised the well settled principle of law that even the dismissal of a special leave petition in liming without assigning reasons does not operate as res judicata.

66. In MCD v. Gurnam Kaur, the Supreme Court held thus:

11.. xxx So far as the order shows, no argument was addressed to the court on the question whether or not any direction could properly be made compelling the Municipal Corporation to construct a stall at the pitching site of a pavement squatter. Professor P.J. Fitzgerald, editor of the Salmond on Jurisprudence, 12th edn. explains the concept of sub silentio at p. 153 in these words:

A decision passes sub silentio, in the technical sense that has come to be attached to that phrase, when the particular point of law involved in the decision is not perceived by the court or present to its mind. The court may consciously decide in favor of one party because of point A, which it considers and pronounces upon. It may be shown, however, that logically the court should not have decided in favor of the particular party unless it also decided point B in his favor; but point B was not argued or considered by the court. In such circumstances, although point B was logically involved in the facts and although the case had a specific outcome, the decision is not an authority on point B. Point B is said to pass sub silentio.

12. In Gerard v. Worth of Paris Ltd. (k)., the only point argued was on the question of priority of the claimant's debt, and, on this argument being heard, the court granted the order. No consideration was given to the question whether a garnishee order could properly be made on an account standing in the name of the liquidator. When, therefore, this very point was argued in a subsequent case before the Court of Appeal in Lancaster Motor Co. (London) Ltd. v. Bremith Ltd., the court held itself not bound by its previous decision. Sir Wilfrid Greene, M.R., said that he could not help thinking that the point now raised had been deliberately passed sub silentio by counsel in order that the point of substance might be decided. He went on to say that the point had to be decided by the earlier court before it could make the order which it did ; nevertheless, since it was decided 'without argument, without reference to the crucial words of the rule, and without any citation of authority', it was not binding and would not be followed. Precedents sub silentio and without argument are of no moment. This rule has ever since been followed. One of the chief reasons for the doctrine of precedent is that a matter that has once been fully argued and decided should not be allowed to be reopened. The weight accorded to dicta varies with the type of dictum. Mere casual expressions carry no weather at all. Not every passing expression of a judge, however eminent, can be treated as an ex cathedra statement, having the weight of authority.

67. It is settled law that a judgment has to be construed in the facts and contentions which were raised before the court (Ref : 2004 VII AD(SC) 109 U.P. Coop. Central Union v. U.P. Sugar Mills; JT 2002 (1) SC 485 Haryana Financial Corporation v. Jagdamba Oil Mils and Anr.). It would be useful to advert to the principles laid down by the Apex Court in the Haryana State Financial Corporation case (supra) wherein the court held thus:

19. Courts should not place reliance on decisions without discussing as to how the factual situation fits in with the fact situation of the decision on which reliance is placed. Observations of Courts are not to be read as Euclid's theorems nor as provisions of the statute. These observations must be read in the context in which they appear. Judgments of courts are not to be construed as statues. To interpret words, phrases and provisions of a statute, it may become necessary for judges to embark into lengthy discussions but the discussion is meant to explain and not to define. Judges interpret statutes, they do not interpret judgments. They interpret words of statutes, their words are not to be interpreted as statutes. In London Graving Dock Co. Ltd. v. Horton 1951 AC 737 at P.761, Lord Mac Dermot observed:

The matter cannot, of course, be settled merely by treating the ipsissima vertra of Willes, J. As though they were part of an Act of Parliament and applying the rules of interpretation appropriate thereto. This is not to detract from the great weight to be given to the language actually used by that most distinguished judge.

In Home Office v. Dorset Yacht Co. 1970 (2) All ER 294 Lord Reid said, 'Lord Atkin's speech... is not to be treated as if it was a statute definition. It will require qualification in new circumstances.' Megarry, J. In (1971) 1 WLR 1062 observed : 'One must not, of course, construe even a reserved judgment of even Russell L.J. As if it were an Act of Parliament.' And, in Herrington v. British Railways Board (1972) 2 WLR 537 Lord Morris said:

There is always peril in treating the words of a speech or judgment as though they are words in a legislative enactment, and it is to be remembered that judicial utterances made in the setting of the facts of a particular case.

Circumstantial flexibility, one additional or different fact may make a world of difference between conclusions in two cases. Disposal of cases by blindly placing reliance on a decision is not proper.

Therefore, drawing from the principles laid down by the Apex Court, the respondent cannot be possibly heard to contend that the dismissal of the contempt petition in respect of other students whose cases rested on their peculiar facts, would in any way preclude the petitioner from agitating his case by way of the present proceedings or would in any way impact the maintainability or sustainability of the present proceedings against the present respondent.

68. In any event, there is one fundamental distinction between the present case and all the cases which have been cited before this Court as a defense by the respondent. The petitioner in the instant case had sought adjudication of his claim by way of W.P.(C) No. 2787/1998. After a careful consideration of the matter, a statement was made on behalf of the Medical Council of India in these proceedings on 12th April, 2002 based whereon this Court issued a mandamus to the Medical Council of India. The Medical Council of India accepted this position and issued a registration certificated on 19th June, 2002, albeit, a provisional one.

The other candidates cited by the respondents had not sought adjudication and there were no statement or orders as the order dated 12th April, 2002 in their favor.

69. The guidelines were placed by the Central Government of India before the Supreme Court which had taken into consideration every aspect of the matter including the disability relating to lack of the qualification or ineligibilty for admission to medical institution under the MCI norms. So far as the present petitioner is concerned, the respondent accepted and admitted that the petitioner was entitled to the condensation of the disability in terms of the directions dated 8th March, 2002 of the Supreme Court of India when they made the statement on 12th April, 2002. Furthermore in acceptance of the same, the respondent issued the provisional certificate to the petitioner on 17th June, 2002 which entitled the petitioner to practice medicine in an approved institution for the purpose of such training. The respondent had made a clear representation to the petitioner that the certificate was to be surrendered in original at the time of 'final registration'. Therefore, inherent on even the provisional certificate which was issued to the petitioner was a stipulation that upon completion of the 12 years period, the petitioner would be given the final registration. The representation to the petitioner on the part of the respondent was clear and explicit.

70. Inasmuch as the petitioner has vehemently contended that this action on the part of the respondent was unfair and was violative of the order passed by the Supreme Court as well as by this Court on 12th April, 2002, it becomes necessary to comment on the same. Undoubtedly, the directions of the Apex Court were clear and unambiguous. This court had granted the respondent, the period of four weeks to process the application of the petitioner for registration without any further ado. There was no objection with regard to the lack of necessary internship on the part of the petitioner by the respondent. The only disability urged was with regard to the lack of the eligibility qualification for admission to institutions in India at the time the petitioner joined his course in USSR. This disability was required to be condoned and the respondent had accepted this position. In my view, therefore, the respondent had no option but to process the case for permanent registration in accordance with law and could not have issued only the provisional registration depriving the petitioner of his right to practice at this stage.

However, be that as it may, the respondent issued the provisional certificate with the clear stipulation that the petitioner would have to surrender the same at the time of final registration. Thereby, they held out the assurance to the petitioner of his entitlement to the final registration. Apprehensive of his plight as he had been denied even provisional registration for a period of almost 12 years after completion of his medical course and anxious to join practice, the petitioner though protested, but accepted the dictate of the respondent and even completed the training which he was required to do by virtue of the provisional registration. Having so completed the same, nothing further remain to be done. The respondent were bound to have issued the permanent registration to the petitioner forthwith.

71. It is interesting to notice that the respondent have not issued a single letter to the petitioner after 19th June, 2002 denying him the permanent registration or rejecting his application for the same. The petitioner has claimed that he has approached them in person as well as by his written communications and even a legal notice dated 21st August, 2003. Let alone a rejection, the respondent have deprived the petitioner of even a reply thereto. Even prior thereto, as back as on 26th June, 2002, the petitioner had objected to the issuance of the provisional certificate. Even in response to this letter, no objection was raised by the respondent who by their silence required the petitioner to abide by the stipulations on the provisional certificate.

72. As I have already noticed above, a mandamus was issued to the respondent which it accepted and according to it, purported to comply. It is the respondent's case before this Court that having issued the provisional registration certificate, it had complied with the directions made by this Court and consequently has so defended its action. The directions made by the court stand even on date and no variation or modification thereof has been sought by the respondent. For this reason alone the reliance placed on the instances of other candidates or the legal opinion is wholly misconceived and unfortunate. The Medical Council of India is a statutory authority vested with a solemn responsibility towards the medical performance and discharge of its statutory functions and public law obligations. It is expected to comply with directions made by court.

73. The direction of the Apex Court to the effect that the disability of students who did not meet the minimum admission norms of the MCI for joining undergraduate medical courses and were admitted to foreign institutes recognised by the MCI would be treated as eligible for registration with MCI was clear and explicit. So far as 'the minimum admission norms' are concerned, they were not restricted to persons who did not pass the 10+2 examination or possession of a minimum of 50% of marks. It is necessary to bear in mind that the guidelines were framed by the Central Government and placed before the Supreme Court and it is not open to the Medical Council of India to carve out categories there under. The respondent accepted this position when it made the statement before this Court on 12th April, 2002. The respondent also acted pursuant to the mandamus issued by this Court and issued the provisional registration to the petitioner with the representation that the same would require to be surrendered at the time of final registration after twelve months. The respondent have not passed any order rejecting the application of the petitioner.

74. It is noteworthy that the issue of the provisional registration certificate was never the purport of the direction of the courts. The Supreme Court had clearly directed that the degree of the students would be treated as eligible for registration with the Medical Council of India. Before this Court, it had been stated on behalf of the Medical Council of India that the counsel would abide by the judgment and direction of the Supreme Court and the writ petition was disposed of on 12th April, 2002 with clear time bound directions to the respondent to process the application of the petitioner. The application of the petitioner was for permanent registration. This has not been decided till date.

75. In this view of the matter, the principles laid down by the Apex Court in J.S. Parihar v. Ganpat Duggar and Ors.; Vijay Singh, Secretary Home v. Mittan Lal Hindoliya and Lalith Mathur v. L. Maheswara Rao would not apply to the instant case.

In all the cases before the Apex Court, the authorities had taken a firm view and passed orders on the applications or issues as directed. The contempt proceedings were based on these final orders passed by the authorities. It was in these circumstances held that the final orders gave rise to a subsequent and fresh cause of action necessitating fresh challenge by an independent petition and not by way of contempt proceedings.

The respondent before this case has admittedly not made any final order on the petitioner's application for permanent registration till date.

76. Before this Court, it is not the respondent's contention that they were not aware of the proceedings and the orders passed by the Supreme Court of India or this Court on 12th April, 2002. It is apparent that the Medical Council of India have moved by issuance of the letter on 3rd May, 2002 only in purported compliance thereof and have issued the provisional certificate as a result. While issuing the provisional certificate on 19th June, 2002, the respondent held out the assurance and promise to the petitioner and maintained his entitlement to the permanent registration even when they wrote on the certificate that the original provisional certificate would required to be rendered at the time of issuance of the permanent registration. No rejection of the application of the petitioner has been communicated to him till date. On the contrary, the respondent have merely prevaricated on the issue and kept the petitioner dangling without any firm answer to him. This position was maintained even at the time the petitioner filed the contempt petition. The petitioner cannot be faulted for being apprehensive and reluctant and knock at the doors of this Court by way of initiation of contempt proceedings when he was finally able to atleast procure a provisional registration with the representation that after completion of the twelve months training period and surrender of the provisional certificate, he would get the final registration.

77. In these circumstances, it does not lie in the mouth of the respondent to contend that the contempt petition filed by the petitioner is belated or is barred by limitation. The respondent having persuaded the petitioner to abide by its directive and to undergo the training before issuance of the final certificate cannot possibly be heard to say that the petitioner was negligent or sleeping over its right. In this behalf, it would be useful to notice the observations of the Apex Court in its pronouncement reported at Pallav Sheth v. Custodian and Ors., wherein the court held thus:

41. One of the principles underlying the law of limitation is that a litigant must act diligently and not sleep over its rights. In this background such an interpretation should be placed on Section 20 of the Act which does not lead to an anomalous result causing hardship to the party who may have acted with utmost diligence and because of the inaction on the part of the Court a contemner cannot be made to suffer. Interpreting the section in the manner canvassed by Mr. Venugopal would mean that the Court would be rendered powerless to punish even though it may be fully convinced of the blatant nature of a contempt having been committed and the same having been brought to the notice of the Court soon after the committal of the contempt and within the period of one year of the same. Section 20, therefore, has to be construed in a manner which would avoid such an anomaly and hardship both as regards the litigant as also by placing a pointless fetter on the part of the Court to punish for its contempt. An interpretation of Section 20, like the one canvassed by the Appellant, which would render the constitutional power of the Courts nugatory in taking action for contempt even in cases of gross contempt, successfully hidden for a period of one year by practicing fraud by the contemner would render Section 20 as liable to be regarded as being in conflict with Article 129 and/or Article 215. Such a rigid interpretation must therefore, be avoided.

xxx xxx

44. Action for contempt is divisible into two categories, namely, that initiated suo motu by the Court and that instituted otherwise than one the Court's own motion. The mode of initiation in each case would necessarily be different. While in the case of suo motu proceedings, it is the Court itself which must initiate by issuing a notice. In other cases initiation can only be by a party filing an application. In our opinion, therefore, the proper construction to be placed on Section 20 must be that action must be initiated, either by filing of an application or by the Court issuing notice suo motu, within a period of one year from the date on which the contempt is alleged to have been committed.

78. After noticing the facts of the case, the court recorded that from the record, it was disclosed that the custodian received information of the appellant having committed contempt only after a receipt of a letter from the income tax authorities and initiated the contempt proceedings thereafter. Recognising the principles laid down in Section 17 of the Limitation Act, the court held that the period of limitation would commence from the date the information with regard to the contempt having been committed was revealed to the parties. In this behalf, in Pallav Sheth's case, the court observed thus:

47. Section 17 of the Limitation Act, inter alia, provides that where, in the case of any suit or application for which a period of limitation is prescribed by the Act, the knowledge is prescribed by the Act, the knowledge of the right or title on which a suit or application is founded is concealed by the fraud of the defendant or his agent (Section 17(1)(b)) or where any document necessary to establish the right of the plaintiff or applicant has been fraudulently concealed from him (Section 17(1)(b)), the period of limitation shall not begin to run until the plaintiff or applicant has discovered the fraud or the mistake or could, with reasonable diligence, have discovered it; or in the case of a concealed document, until the plaintiff or the applicant first had the means of producing the concealed document or compelling its production. These provisions embody fundamental principles of justice and equity, viz., that a party should not be penalised for failing to adopt legal proceedings when the facts or material necessary for him to do so have been willfully concealed from him and also that a party who has acted fraudulently should not gain the benefit of limitation running in his favor by virtue of such fraud.

79. The principles laid down by the Apex Court in Pallav Sheth's case were relied upon in a later pronouncement of the apex Court reported at Bank of Baroda v. Sadruddin Hasandaya and Anr., wherein the court held thus:

11. One of the pleas taken in the reply filed by the respondent is that they had given the undertaking before the Bombay High Court on 5-10-1999 but he present petition for initiating contempt proceedings against them was filed after more than one year in May 2001 and consequently, the same was barred by limitation by virtue of Section 20 of the Contempt of Courts Act. In this connection it may be noticed that the petitioners are not party to Summary Suit No. 4571 of 1996 which was instituted by Oman International Bank, SAOD in the Bombay High Court wherein the respondent entered into a settlement and gave an undertaking in the consent terms on 5-10-1999. Normally, a person who is not a party to the suit or proceedings can get no knowledge of the affidavits or documents filed therein. It is categorically stated in para 14 of the present petition that in January 2001 the petitioners learnt about the consent decree passed in the case of Oman International Bank during the course of execution proceedings before the Debts Recovery Tribunal, when steps were taken to attach the aforesaid three properties. The material to show that the petitioners had got knowledge of the consent terms filed by the respondent in the Bombay High Court at any time prior thereto. The petitioners filed the present application within five months of getting knowledge of the undertaking given by the respondent in the aforesaid case. In such a situation, the proceedings initiated against the respondent cannot be held to be barred by limitation in view of the law laid down by this Court in Pallav Sheth v. Custodian SCC paras 44 and 47, wherein it has been held that the period of limitation in a case like the present one has to be counted from the date of knowledge.

80. Upon an examination of the facts of the instant case in the light of the principles laid down by the Apex Court, I have no manner of doubt that the respondent had itself caused the petitioner to believe that the permanent registration would be issued upon expiry of the twelve months period of the provisional registration and further the application of the petitioner has not been rejected by any communication to the petitioner even till date from the respondent. Therefore, it cannot be contended that the present proceedings would be hit or would be barred on account of the same having been initiated beyond the period of one year from the date of commission of the contempt.

81. I find that the defense taken by the respondent is not only self contradictory but is also malafide. On the one hand, the respondent has purported to set up and has made longdrawn arguments on the issue that the petitioner is not entitled to the condensation of the disability as provided in the order of the Apex Court dated 8th March, 2002, at the same time, the respondent is urging that it has issued the provisional certification and has thereby complied by the directives of the courts.

82. It is apparent from the record of the present case that the respondent had no doubt with regard to the entitlement of the petitioner to the grant of registration and the benefit of the order dated 8th March, 2002 of the Apex Court when it made the statement before the court on 12th April, 2002. It is equally apparent that no doubt existed even when the provisional registration certificate was issued on 19th June, 2002. All the reasons have been discussed herein have been carved out in the counter affidavit filed in answer to the notice to show cause issued by this Court.

83. The respondent has relied upon the pronouncements of the learned Single Judge in Dr. Namit Bhargava v. Medical Council of India; 2004 I AD (Delhi) 465 Brijesh Ranjan v. Medical Council of India and the decision dated 25th January, 2005 passed by the Division Bench in LPA No. 181 of 2004 Brijesh Ranjan v. Medical Council of India. Both Namit Bhargava and Brijesh Ranjan suffered from two disabilities and apart from not fulfillling admission eligibility norms in India had studied in unrecognised medical institutions. This is not so in the instant case. In any case the petitioner's writ petition stood decided on 12th April, 2002.

84. The issue before the Apex Court in (2005) 1 SCC 48 Anand Kumar Singh and Ors. v. UOI related to the cut off date for screening test while in 2003 VI AD(Delhi) 421 Dr. Birender Singh Thind v. UOI, the petitioner was seeking recognition of a qualification acquired by him. Neither of these issues arise for consideration in the present case. These binding judicial pronouncements relied upon by the petitioner therefore also do not have a bearing on the case in hand.

85. The power under the Contempt of Court Act, 1971 is exercised in order to achieve a three fold purpose. It is well settled that law does not command in vain. The courts are empowered and required to implement and enforce orders passed in exercise of its jurisdiction. The jurisdiction under the Contempt of Court Act empowers the court to impose punishment to uphold the majesty and dignity of law without any detraction from the power to enforce compliance with the orders passed by the court. In a given case, the court would be appropriately empowered to even compensate the person who suffers from the contumacious conduct of the contemnor by adequate damages.

86. Every action of a statutory authority has to reflect fairness. Non- compliance of an order passed by the court has two extremely serious consequences. Firstly it results in interference with the administration and course of justice. Secondly, it deprives the beneficiary of an order of the court of the benefits there under.

When such non-compliance is culpable and suffers from unexplained delays and is coupled with the intention on the part of the contemnor to frustrate the orders passed by the court, the same is certainly a matter of grave concern and deserves to be strictly dealt with. It is so in the instant case.

87. The Medical Council of India has claimed that it has granted provisional registration to the petitioner. The petitioner abided by the directives of the Medical Council of India. According to the respondent thereupon nothing remained before the Medical Council of India to grant the petitioner registration.

88. It is noteworthy that in its entire pleadings before this Court, the Medical Council of India has not been able to point out a single reason as to why the petitioner ought not to have been granted the permanent registration. The direction made by this Court pursuant to the statement on behalf of the Medical Council of India on 12th April, 2002 required consideration of the application of the petitioner in terms of the directions of the Apex Court. Time bound directions had been given. The Apex Court in para 7 of the reported judgment had directed the Medical Council of India that 'in respect of those who have already applied for registration to Medical Council of India the same shall be granted or refused within a period of 15 days from today in terms of this order.'

89. The petitioner had admittedly applied for registration in the year 1991. This court extended the period given by the Apex Court by four weeks. The petitioner was entitled to condensation in terms of the guidelines 6A(ii) placed by the Medical Council of India before the Apex Court which was approved by the judgment dated 8th March, 2002.

90. Therefore, in my view, the respondent has failed to grant the condensation to which the petitioner was entitled in terms of para 6A(ii) of the guidelines approved by the Apex Court in within the period as granted by this Court. I have no hesitation in holding that the respondent has contumaciously, willfully and deliberately violated the directions made in the order dated 12th April, 2002 and has thereby committed contempt of court.

91. Admittedly the petitioner was granted provisional registration by the Medical Council of India. This could only be if he satisfied the requirements thereof. The petitioner has placed the documents required by the Medical Council of India before it. No objection thereto has been raised by the Medical Council of India till date. No objection in respect of the same has been raised in the counter affidavit or even in the submissions, even if it could be raised. After grant of the provisional registration, the petitioner has done another period of internship with the Wenlock District Hospital. A certificate dated 24.7.2003 issued by the District Surgeon and Superintendent of this Hospital which is located in Mangalore and run by the Government of Karantaka has been placed on record. This is not disputed by the respondent. The petitioner has admittedly satisfied the conditions of even the provisional registration. The respondent admits knowledge of the order dated 12th April, 2002.

92. Having so held, it is necessary to note that there is neither repentance not a bonafide attempt to purge the contempt on the part of the respondent even during the pendency of the present matter. Such conduct undermines the authority of the court and undoubtedly disturbs the confidence of a citizen in the effectiveness of its orders. The power to punish for contempt is to be found in Section 12 of the Contempt of Court Act, 1971. On the question of sentence, in its judgment reported at Bank of Baroda v. Sadruddin Hasandaya and Anr., the Supreme Court has observed thus:

16. Coming to the question of sentence, we are conscious of the fact that the power to punish for contempt must always be exercised consciously, wisely and with circumspection. At the same time, the court should act with seriousness and severity where justice is jeopardized by a grossly contemptuous act of a party. If the judiciary is to perform its duties and functions effectively and true to the spirit with which they are sacredly entrusted, the dignity and authority of the courts have to be respected and protected at all costs. Otherwise, the very cornerstone of our constitutional scheme will give way and with it will disappear the rule of law and the civilized life in the society (see Vinay Chandra Mishra). The present petition was heard on 27-8-2003 when we enquired whether the respondent would be willing to deposit the amount. Learned counsel for the respondent sought time and the case was adjourned to 23- 9-2003 and then to 14-10-2003 for the respondent reiterated the problems of the respondent in depositing the amount and so the matter was heard on merits. The position remains that though under the consent decree passed by the Court on 28- 7-1999, the respondent had to deposit the first Installment on or before 1-11- 1999 and the last Installment by 1-8-2001, but they have not deposited or paid even a single penny. In these circumstances, we are of the opinion that there is no occasion for showing any leniency in the matter of punishment.

17. We, accordingly, hold that the respondent have committed contempt of court for which they are sentenced to undergo four months' imprisonment. It is, however, directed that after they have undergone 15 days' imprisonment, they shall be released on short-term bail for a period of three months on their furnishing bail bonds etc. to the satisfaction of the Registrar, Bombay High Court. If during this period of three months, they deposit the entire amount in terms of the consent decree dated 28-7-1999, the sentence of four months' imprisonment imposed upon them shall be reduced to the period already undergone, failing which they will undergo the balance period of imprisonment.

93. In 1995 Crl. Law Journal 2179 (at page 2183, 2184) Sunil Kumar Ghose v. State of West Bengal, it was held that in a contempt application, the court was competent to issue necessary, further and consequential directions for enforcing its orders. In this case, the court directed the contemnor to comply with the directions given in the judgment of the Supreme Court within three weeks from the date of passing of the order.

94. Law confers a discretion on this Court so far as punishment for contempt of court is concerned. Having regard to the facts and circumstances of the case, before considering the quantum of sentence to be imposed on the respondent, I am of the view that in the interests of justice hearing on the same be deferred. I hereby give one opportunity to the respondent/contemnor to mitigate or purge the contempt committed by complying with the directions made by this Court on 12th April, 2002 within a period of four weeks from today.

95. At this stage, it is necessary to note the other prayers made in the petition. It has been pointed out that on account of the delay in granting the registration to the petitioner, he has enured heavy financial loss and the petitioner deserves to be compensated by compensatory costs.

96. Undoubtedly the petitioner possessed a recognised medical qualification which was granted to him as back as in 1991 and he made the application for registration to the respondent. However, on account of the stand of the Medical Council of India on which final directions were made only on 8th March, 2002 by the Apex Court, the period prior thereto has to be ignored. However, the Apex Court had granted time bound directions and granted a period of 15 days only to the Medical Council of India to act in terms of its judgment. This court vide the order passed on 12th April, 2002 gave a period of four weeks to the respondent to ensure compliance with the directions passed by the Apex Court and to process the case for registration of the petitioner in terms of the judgment and guidelines within four weeks. The respondent upon such consideration, instead of granting permanent registration granted only provisional registration to the petitioner and has till date not granted him the permanent registration. The petitioner has also contended that even if the stand of the respondent was to be sustained, then, even as per the respondent he became entitled to permanent registration with effect from completion of 12 months from the date of the provisional registration on 17th June, 2002. This period of one year came to an end on 17th June, 2003.

97. No tenable circumstances have been laid before this Court by the respondent to justify the failure to grant the permanent registration to the petitioner thereafter.

98. It is an admitted position that the petitioner cannot practice as a doctor without his permanent registration. The respondent had required the petitioner to an additional year of internship after grant of his degree which he had completed in the USSR despite the directions of the Apex Court, he has completed a further year of internship in India as well. His applications and requests to the respondent have fallen on deaf ears and remain pending unreplied. The respondent have filed a counter affidavit on 11th February, 2004 taking every plea possible despite a conscious statement made on 12th April, 2002. The matter has remained pending in this Court since October, 2003. Despite the directions dated 8th March, 2002 of the Apex Court and the order dated 12th April, 2002, the petitioner has been denied registration. Even though provisional registration was granted, which according to the respondent, is in purported compliance of the orders dated 12th April, 2002, the respondent has contradictorily and contumaciously urged that the petitioner is not entitled to registration. The petitioner has been prevented from earning his livelihood and undoubtedly has suffered immense humiliation and deprivation on account of these actions on the respondent.

99. In 1994 II AD(Delhi) 544 Dr. Ravinder Kumar Mathur v. Delhi Administration, a Division Bench of this Court was concerned with delay on the part of the authorities in processing an application for study leave in respect of a doctor who was granted admission to the post graduate course by the Delhi University. In view of the delay in processing the application on the part of his employers, the petitioner was being denied admission by the university. The court in these circumstances, when approached by way of a writ petition under Article 226 of the Constitution of India seeking issuance of a mandamus, held that in view of the delay the petitioner could not be given admission. However in view of the manner in which the respondent had proceeded the court and held thus:

7. xxx It will, therefore, appear to us that the officers of the Delhi Administration slept over the application of the petitioner all this period without any reason causing irreparable loss and damage to the petitioner. In these circumstances, we propose to recompensate the petitioner by imposing heavy cost by way of damages on Delhi Administration and its officers. This cost we tentatively quantify at Rs. one lakh though it does appear to us that this will be a poor consolation to the petitioner, but we cannot help otherwise. In ordering this we draw strength from the decision of the Supreme Court in Lucknow Development Authority v. M.K. Gupta 1994 (IV) AD S.C.(C) 469. Before we impose cost on the officers of the Delhi Administration who dealt with the file, we require the Secretary (Medical), Delhi Administration, to produce in this Court relevant file and also file an affidavit giving names of all the officers who dealt with the file at various stages till permission was finally granted to the petitioner.

100. The respondent did not comply with the court directions. Instead, a review petition being RA 5262/1996 was filed in the writ petition seeking modification of the judgment dated 8th April, 1994. This review petition was accompanied by CM 5763/1996 seeking condensation of delay. The respondent thereby sought to justify and defend the action of their officials in failing to process the application. In these circumstances, after a detailed consideration of the matter, by judgment dated 12th February, 1999 the Hon'ble Bench awarded a further sum of Rs. five lakhs to the petitioner as damages. This judgment of the Division Bench is reported at 1999 III AD(Delhi) 833 entitled Dr. Ravinder Kumar Mathur v. Union of India.

101. The petitioner has contended that he has been deprived of practice and earning his livelihood even as per the case set up by the petitioner. The petitioner has therefore prayed for awarding damages at the rate of Rs. 5 lakhs per year after 12th April, 2002.

102. In Dr. Ravinder Kumar Mathur (supra) the Division Bench imposed heavy cost by way of damages. Having regard to the entire facts and circumstances, I am of the view that the petitioner may also deserves to be paid such costs and also costs of the present litigation. Accordingly, it is directed that this issue shall be also heard on the next date and would be quantified on the next date of hearing.

103. As I have found the respondent guilty of contempt of court, the respondent is called upon to address the court on the issue of quantum of sentence.

List the matter for hearing on sentence and punitive costs on 3rd July, 2006.