At, High Court of Bihar
By, THE HONOURABLE MR. JUSTICE NAVIN SINHA
For the Appearing Parties: ------------
NAVIN SINHA, J.
(1.) Heard learned counsel for the petitioner and the learned Additional Advocate General No. 2 for the State.
(2.) The petitioner alleges wilful disobedience of the order dated 1.3.2000 in CWJC No. 7033 of 1998.
(3.) This Court in the said writ application would have proceeded to determine the question of the equivalence of the post of Assistant Clinical Pathologist to that of Associate Professor or Assistant Professor and whether the same be a teaching post.
(4.) Learned counsel for petitioner would submit that this Court on discussion inter alia relying upon
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the letter of the Medical Council of India, dated 24.2.1961 as also assumption of the official respondents in pursuance thereof would have held that the post of Assistant Clinical Pathologist be equivalent to lecturer and was thus a teaching post. In the background of this factual finding the matter would have then been directed to be Decided by the respondents as to whether the post of Assistant Clinical Pathologist would be equivalent to Assistant Professor or Associate Professor. For the purpose, the respondents would have been given liberty to seek instruction and guidance from the Medical Council of India also. The respondents in pursuance thereof would have issued a notification dated 29.7.2003 that the post of Assistant Clinical Pathologist, was a non-teaching post and therefore the question of determination of equivalence thereof with the post of Assistant Professor or Associate Professor did not arise. This he submits was wilful defiance of the order of this Court and the finding arrived at that the post of Assistant Clinical Pathologist be a teaching post. The matter would have attained finality as the respondents would not have challenged the same.
(5.) Learned Additional Advocate General No. 2 appearing on behalf of the opposite parties would submit that in terms of the direction of this Court the opposite parties would have referred the matter to the Medical Council of India for expert guidance. The petitioner would also have written in this regard to the Medical council of India and -which would have been replied directly to her by the Medical council of India by their communication dated 17.8.2000 at Annexure-B to the second supplementary show cause. The communication would explicitly state that the post of Assistant Clinical Pathologist in a hospital could not be equated to that of a Assistant Professor of Associate Professor in a Medical college and that the post of Assistant Clinical Pathologist was a non-teaching post. The opposite parties would quite simply have acted in pursuance of this expert advice from the expert body Le., Medical Council of India as per the direction of this Court. It is not in dispute that the Medical Council of India was not a party respondent in the writ application.
(6.) This Court would take note of the fact that the communication dated 17.8.2000 was sent to the petitioner by the Medical Council of India soon immediately after she would have preferred the present application but it would not have been placed by her before this Court. This Court would therefore have before it the communication of the Medical Council of India of 1961 that the post of Assistant Clinical Pathologist be equivalent to that of Lecturer. The opposite parties would have then proceeded on that assumption and the decision in the writ application came to be delivered. The Medical Council of India was not a party respondent in the writ application. In pursuance of the matter having been referred to the Medical Council of India in terms of the direction of this Court the opposite parties have now acted and passed orders in accordance with the advice tendered to them by the Medical Council of India. In the facts and circumstances, this Court is unable to record a finding of wilful and intention disobedience of the order of this Court against the opposite parties. This Court is satisfied that the opposite parties have acted on the basis of such expert advice rendered by the Medical Council of India in terms of the directions of this Court. The counsel would have rendered another advice in 1961. The Council would not have been a party in the writ proceedings.
(7.) The meaning and scope of the advice tendered by the Medical Council of India and its contradiction to the earlier advice tendered cannot be subject-matter of this contempt proceeding. In the facts and circumstances, this Court is satisfied that there has been no wilful disobedience or defiance of the order of this Court by. the opposite parties.
(8.) The opposite parties would have expressed their genuine difficulty in' the compliance of the order of this Court. The Court finds it difficult in the facts of the case to reject the same ipso facto and proceed in contempt jurisdiction. The Supreme Court in a case Mohd. Iqbal Khanday v. Abdul Majid Rather, would have observed at paragraph 15 of the judgment as follows :- From the above, it appears that the appellant was expressing his genuine difficulties with regard to the implementing of the order dated 21.9.1992. In such a situation the insistence of the Courts on implementation may not square with realities of the situation and the practicability of implementation of the Court's direction. In our considered view, hocking a party to contempt proceedings and enforcing obedience to such orders hardly lends credence to judicial process and authority; more so. in the peculiar facts and circumstances of the case. The Court must always be zealous in preserving its authority and dignity but at the same time it will be inadvisable to require compliance of an order impossible of compliance at the instance of the person proceeding against for contempt. Practically, what the Court by means of the contempt proceedings seeks is an execution which cannot meet with our approval.
(9.) The application is therefore dismissed.
(10.) The petitioner, if so aggrieved, shall be at liberty to assail the decision of the Medical Council of India and the consequential action of the opposite parties.
(11.) The opposite parties are discharged in the contempt matter