Syed Aqeel Hussain vs B.S.Jaswal and Others

Before adverting to the merits of the case, the facts and circumstances giving rise to this contempt petition may be adumbrated as under :

The petitioner alongwith other ten others had filed a Writ Petition bearing No: 259 of 1991, challenging selection to M.B.B.S. Course in the

Medical College of Jammu and Srinagar for the session 199091. The said petition came to be decided by this Court on 2961992 after a hot

contest. The petition was allowed in favour of three petitioners only including the petitioner herein and the respondents were directed to grant the

admission in the MBBS Course in the Medical College, Srinagar. For the rest of the petitioners the petition was dismissed.

The State of Jammu and Kashmir and the respondent No:2 herein filed a Letters Patent Appeal against the said judgment which is pending

disposal. However the appellate court has not stayed the operation of the judgment.

Allegedly the petitioner approached the respondents for admitting him in the MBBS Course in terms of the judgment of the Court, which they

flatly refused. He therefore, filed contempt petition bearing No:431 of 1992 against the respondents. The other successful writ petitioners also filed

a contempt petition bearing No: 455 of 1992. During the pendency of the said contempt petition, it was observed by this court that for about ten

months the respondents failed to implement the judgment. Consequently, on 461993, Government Order No: 481Trgs of 1993 came to be issued

granting admission to the three writ petitioners subject to the following two conditions:

(i) That the admission will be subject to the condition that none of the candidates are registered as MBBS Students in any of the Universities in our

State or outside the State, and,

(ii) That such admission will be subject to the outcome of the LPA filed by the State.

The petitioner herein took an objection to the first condition as imposed by the Government on the judgment of this court. He submitted that

during the course of pendency of the writ petition he was constrained to seek admission in the Jehlum Valley Medical College, Srinagar, hereinafter

referred to as J.V.M.C, and the condition imposed in the Government order (Supra) would deprive him of his right to be admitted in the Govt.

Medical College.

During the Course of arguments on the said matter, the learned Advocate General fairly conceded that the said condition is violative of the

Judgment of the Court. In that view of the matter the court held that condition as nonest in the eye of law. The contempt petitions referred to above

were therefore disposed of as settled and the respondents were directed to implement the judgment of the Court in its letter and spirit. In the

meanwhile, the Government appears to have passed an order bearing No: 928GAD of 1993 dated 21101993 deleting the said condition.

Allegedly the petitioner herein has not been admitted in the MBBS Course so far, by the respondents and therefore, he has filed the present

contempt petition. According to him the Principal Medical College Srinagar vide his order dated 961993 again imposed the condition on his

admission, though it was held as nonest. by the court. He therefore, made a representation to the Secretary to Government General Department on

1061993 for issuing a corrigendum in the Government order deleting the condition. It took the said Secretary 4 1/2 months to issue the

corrigendum on 21101993, as referred to above. Allegedly despite the issuance of the Corrigendum by the Government, the Principal has refused

to admit him in the Medical College Srinagar.

The contempt petition came to be considered for the time on 1691993, and the Court directed that before issuing a rule against the respondents,

they should be asked to file a statement of facts and show cause as to why the petitioner was not granted admission. It took the Principal about 6

months time to file the said statement which he filed on 3.3.1994.

Now the Court is called upon to consider as to whether the respondents have committed the contempt of the court or not. In this regard I have

heard the learned counsel for the parties. I have also gone through the record.

Admittedly the petitioner succeeded in the Writ petition and the respondents were directed to grant admission to him in the MBBS Course as

far back as on 2961992. The said order of the court has not been complied with so far and the petitioner has not been granted the admission so

far despite a lapse of about two years. Firstly a condition was imposed on his admission that he should not be registered in any University. The said

condition was held as nonest by the court, being violative of the judgment, and consequently the Government deleted the same. Now another hitch

is being created in the way of the petitioner from reaping the fruit of the judgment. In the statement of facts it is stated that the petitioner seeks

admission in the 3rd year in the JVMC, which allegedly is beyond the competence of the respondents. According to them such admission is

permissible in case of migration from one recognised Medical College to another recognised Medical College. As JVMC is not a recognised

College, the petitioner therefore, cannot be admitted in the 3rd Year of the MBBS Course, in the Government Medical College Srinagar.

The learned counsel for the petitioner on the other hand has referred me to the University Statute, wherein in Chapter XI, relating to

examinations General, it is laid down in Statute 20 that ""no one who has passed an examination of the University or an equivalent examination of

another University shall be permitted to appear at the same examination except as specifically prescribed in the Statutes governing an examination"".

The petitioner has annexed (as Annexure 15) with the contempt petition, a Marks Certificate, issued in his favour by the University of Kashmir

showing that he has passed 'First MBBS Examination' in 1992 Session.

It is an admitted case of the petitioner that due to the defective selection made by the respondents to the MBBS Course he was illegally

excluded from such selection. He approached the Court by way of the Writ petition and firstly sought provisional admission. Such admission was

not granted to him and it took the court more than a year to decide his Writ petition finally which was however allowed. Even then the respondents

created hurdles in his way and the judgment of the Court has not been implemented by them so far. According to him he was constrained to seek

admission in the JVMC to protect his career. He could not wait for years together and throw himself at the mercy of the respondents. For more

than three years he is fighting for his rights and the Court has held him entitled to admission to the MBBS Course in the Medical College Srinagar.

The respondents have allegedly adopted revengeful attitude against him and for ulterior motive and malafide considerations they are illegally

depriving him of his right to be admitted in the Government Medical College. They do not want him to be admitted in the said College and are

creating problems for him.

The question is that once the court held as nonest, the condition in question and the Government rectified its mistake amending its earlier order

after deleting the same, where remains the hitch for the Principal to admit the petitioner to the MBBS Course. The court had not said it in its

judgment that the petitioner shall be admitted in the first year of the MBBS Course only. The mandate of the judgment is that the petitioners

exclusion from selection was illegal and therefore, he shall be admitted in the said course. If due to onreasonable attitude of the respondents the

petitioner was constrained to seek admission in JVMC, he has not committed any crime. After all he was not expected to run in his career. Three

years period of a student's career is precious for him which no one can compensate. The court really feels sorry for the unfortunate, if not callous

attitude of the respondents particularly the Principal of the Medical College Srinagar, who appear to be bent upon to defy the judgment of the

Court and deprive the petitioner of his right to be admitted in the Government Medical College, Srinagar. The plea taken by them that admission in

3rd year can be granted only by migration is misconceived, in the fact and circumstances of the present case. The question of migration is not at all

involved in the present case. The petitioner has a right to be admitted to the 3rd year of the Course without any migration on the basis of the

judgment of this court. It is for the willful default of the respondents that the petitioner is required to be admitted in the 3rd year instead of 1st year.

The learned counsel for the petitioner submitted at the bar that the Principal had filed a special leave petition in the Supreme Court against the

order of this court dated 4th June, 1993, which has been dismissed . It is by that order of this Court that the condition in question imposed by the

Government on the admission of the petitioner was held as nonest in the eye of law. According to him it was the Principal and not the State which

had filed that SIP.

There is a golden adage of wisdom that where there is will there is way. The respondents instead of helping the students to shine in their

careers, are creating problems for them. The petitioner was illegally denied admission in the Medical College. The court came to his rescue and

granted his writ petition. Three years have elapsed and they are not even taking pity on him. It is due to their omission and commission that he

sought admission in JVMC and saved his career. Instead of putting his courage they want to ruin his career. They should have devised a method to

help him if there was any technical obstacle in his way in getting the admission. Admittedly he is reading in the 3rd year of MBBS Course in the

JVMC and has passed the 1st MBBS Examination. The university for the JVMC and the Government Medical College Srinagar is the same, and

where should the petitioner go and what should he do except knocking the door of the Court. Under the University Statute, he cannot be permitted

to appear at the examination which he has already passed. So what is the alternative left for him. If the respondents and the Court do not find an

alternative for him, where should he go.

I have given my serious thought to the merits of the case and to the problem confronting the petitioner. In my opinion, in the peculiar

circumstances of the case there is no legal bar in admitting the petitioner to the 3rd year of the MBBS Course, though notionally he can be first

admitted in the 1st year of the MBBS Course, to put the record to the College straight, and then allowed to sit in the 3rd year of the said course

after showing him to have passed the 1st MBBS Course from the University of Kashmir, which admittedly he has done. He can produce the proof

from the JVMC to enable the Principal to pass an order in this behalf.

Though I am called upon to consider as to whether the respondents are guilty for the contempt of the Court or not, but before doing so, I want

to dear the imaginary cubwebs, coming in the way of the petitioner for his admission. If the respondents think in a positive way, it is not difficult to

find out the way to admit the petitioner. The courts are generally very loath to jump to conclusions for convicting the defaulters, unless willful and

persistent defiance is insisted upon, and criminal contempt is committee by them. We are concerned with the implementation of the Court orders so

as to help the successful petitioners and to maintain the majesty of law. If however, any defaulter whosoever or how high so ever he may be, is

found bent upon to impinge upon the dignity of the court, the iron hand of law is not to be spared, to set him right.

I would therefore like to give one more chance to the respondents to mend their way and implement the judgment of the court in good faith and

in its letter and spirit. This is my honest opinion, is in the best interests of justice as well. It is for the respondents to choose the way, either to

implement the judgment in its true spirit or to face the consequences. I have tried to show a beacon light to them and the choice is theirs.

In these circumstances of the case, I hereby direct that the petitioner shall be admitted in the 3rd year of the MBBS Course in the Medical

College Srinagar after notionally admitting him in the 1st Year of the said Course and notionally promoting him to the 2nd year in their records, just

to put it straight. Needless to mention that he has already passed the first MBBS Examination through the University of Kashmir in the Session

1992 and is admittedly studying in the 3rd year of the MBBS Course in the JVMC Srinagar. This cannot be treated as a case of migration by any

stretch of imagination. It is a simple and straight case of implementing the judgment of the court and nothing else. The petitioner was illegally

excluded from selection by the respondents and the Court has found him entitled to the same. It is due to the omissions and commissions of the

respondents that the petitioner was made to seek admission in the JVMC and continue his study there for more than two years. Fortunately the

course between the two Medical Colleges is the same and the University is the same. I give two weeks time to the respondents to implement this

order in its letter and spirit from the date it is served upon them, failing which the court may be constrained to initiate contempt proceedings against

them. The Additional Registrar, is directed to send one copy of this order each to the Secretary to Government General Department and the

Principal Medical College, Srinagar with his forwarding letter on their names by tomorrow through some responsible officer of the Court, who shall

obtain receipts from them, which shall be placed on the file. They will be jointly and severally responsible to implement this order without fail. In

case they fail to implement this order, they shall deem the same as a rule issued to them for the contempt of the Court and show cause to the Court

on the next date as to why they shall not be punished, and in that case to receive the punishment they shall be personally present. The case shall be

listed again on 28th of June 1994 for further orders.