[11/27, 16:13] Sekarreporter1: https://twitter.com/sekarreporter1/status/1332273038025322496?s=08 [11/27, 16:13] Sekarreporter1: DMK filed contempt petition before madras HC for disobedience of order of Hon’ble first bench dated 27.7.2020 https://t.co/oPnEjEtDbn

11/27, 16:13] Sekarreporter1: https://twitter.com/sekarreporter1/status/1332273038025322496?s=08
[11/27, 16:13] Sekarreporter1: DMK filed contempt petition before madras HC for disobedience of order of Hon’ble first bench dated 27.7.2020 https://t.co/oPnEjEtDbn

 

 

IN THE HIGH COURT OF JUDICATURE AT MADRAS
(CONTEMPT JURISDICTION)

Cont. Petition. No. of 2020

IN

W.P No. 8326 of 2020

Dravida Munnetra Kazhagam
Represented by its
Press Relation Secretary
TKS Elangovan
Residing at C5, Lloyds Colony,
Royapettah,
Chennai- 600 014

Having office at
367 & 369, Anna Arivalayam,
Anna Salai, Teynampet,
Chennai- 600 018 … Petitioner/Petitioner

Vs.
1. Mr Rajesh Bhushan
Secretary
Ministry of Health and Family Welfare,
Nirmal Bhavan, Near Udyog Bhawan Metro Station,
Maulana Azad Road,
New Delhi,
Chennai- 110011

2. Mr R Subrahmanyam
The Secretary to Government
Ministry of Human Resource Development now Known as Ministry of Education
No.1, West Block, Rama Krishna Puram,
New Delhi, Delhi- 110066

3. Dr. R.K. Vats
Secretary
National Medical commission (formerly The Medical Council of India)
Pocket 14, Sector 8 Dwarka Phase I,
New Delhi- 110077

4. Prof. (Dr.) Sunil Kumar
The Director General of Health Service,
Room No. 446-A,
Nirman Bhavan, New Delhi-110001

5. Dr Abhijat Sheth
The Chairman
The National Board of Examination
Ansari Nagar,
Mahatma Gandhi Marg,
New Delhi

6. Dr. J. Radhakrishnan, I.A.S
The Secretary to Government
Department of Health & Family Welfare,
Government of Tamil Nadu,
Secretariat, Fort St. George
Chennai- 600 009

7. Dr. Sabyasachi Saha
Secretary
The Dental Council of India
Aiwan-E-Gali Marg,
Kotla Road, Temple Lane,
Opp. Mata Sundari College for Women,
New Delhi- 110002

8. Dr B D Athani
Medical Counselling Committee
Nirmal Bhawan,
Near Udyog Bhawan Metro Station,
Maulana Azad Road,
New Delhi,
Delhi- 110011 … Respondents/Respondents

9. Mr. K. Shanmugam, I.A.S
The Chief Secretary to Government
Government of Tamil Nadu
Secretariat, Fort St. George
Chennai- 600 009 … Respondent 9/ Not a party

 

AFFIDAVIT OF T.K.S ELANGOVAN

I, T.K.S. Elangovan, son of T.K. Srinivasan, Indian, aged about 65 years, presently the Press Relations Secretary of the Petitioner DMK Party, having office at “Anna Arivalayam”, DMK Head Quarters, No. 367 & 369, Anna Salai, Teynampet, Chennai- 600 018 do hereby solemnly affirm and sincerely state as follows:

1. I am the Press Relations Secretary of the Petitioner Political Party herein and as such I am well acquainted with the facts and circumstances of the case. Hence I am competent to swear to this affidavit.

2. I submit that the All India Quota seats is a scheme devised by Hon’ble Supreme Court in Pradeep Jain’s case in the year 1984. Under the scheme the Central Government and State Governments voluntarily contribute seats to the All India Quota (AIQ) in the ratio of 15% for UG Courses and 50% for PG Courses. Originally no communal reservations were provided in the contributed seats by State and Central Governments. However, after the judgment rendered in Abbay Nath’s case, the Hon’ble Supreme Court permitted communal reservations for SC and ST. Later after the 93rd Constitution Amendment, the reservations for OBC also were given by virtue of the Parliamentary Act viz. The Central Educational (Reservations in Admission) Act, 2007.

3. I submit that as per Regulation 9 (IV) of the Post Graduate Medical Education Regulations, 2000, the reservation of seats in medical colleges or institutions for respective categories shall be as per applicable laws prevailing in States/ Union Territories where the medical college is physically situated. Similarly, for the UG courses, the Regulations state that the reservations as prevailing in the States/UT are applicable. In Tamil Nadu, we have a total of 69% reservations for OBCs, SC and ST. In this, OBC (BC and MBC) reservations are to an extent of 50%.

4. I submit that the reservation in Tamil Nadu is already at 69% due to the operation of the Tamil Nadu Backward Classes, Schedules Castes and Scheduled Tribes (Reservation of Seats in Educational Institutions and of Appointments or Posts in the Services under the State) Act, 1993 (Tamil Nadu Act 45 of 1993) which has the protection of Article 31-B and has been placed in the IX Schedule of the Constitution. Therefore in Tamil Nadu, reservation for backward class is 50% which the State has to apply.

5. I humbly submit that the Director General of Health Services, Medical Counselling Committee and the Medical Council of India and Dental Council of India have grossly failed to provide reservations for Other Backward Classes (OBC) students in admissions to the Under Graduate, Diploma, PG Diploma and Post Graduate medical courses in all medical colleges across the country in the category of ‘state surrendered seats to the All India Quota’ in Government and private medical colleges other than the Central Government institutions.

6. I humbly submit that the DMK Party raised the issue in the Parliament time and again of not providing communal reservations for OBC including not following 69% reservations in the State contributed seats to All India Quota. In fact only due to continuous raising of the issue again and again in the both Houses of the Parliament, in the year 2019, the Hon’ble Union Minister for Health and Family Welfare wrote a letter dated 18.12.2019 to one of our MPs taking a stand that only due to the pendency of Saloni Kumari case in WP (C) No 596/2015 before Hon’ble Supreme Court and due to not having reservation laws in the State, the reservations could not be provided. This was followed by the DMK party deputing one of its MPs to meet the Hon’ble Minister and apprise him of the issue. Accordingly, the Hon’ble Minister was met on 6.1.2020 and a detailed representation was given by the MP on behalf of DMK Party. Even then the 1st Respondent did not heed to the request of providing reservations. More so the stand of Hon’ble Union Minister for Health and Family Welfare in his reply letter dated 18.12.2020 cannot be countenanced in law and therefore the DMK decided to take up the issue before the Hon’ble Court praying for necessary reliefs.

7. I humbly submit that therefore, the DMK party was the first party to file a Writ Petition before the Hon’ble Supreme Court under Art 32 on 28.5.2020 praying for issuance of Writ of Mandamus to apply 69% reservations in the State contributed seats to All India quota. The Writ petition was filed before the Hon’ble Supreme Court since the Saloni Kumari Writ Petition in WP(C) No 596/2015 was pending before Hon’ble Supreme Court. However, the Writ petition filed by DMK party in WP (C) No 507/2020 and other connected Writ petitions were heard by the Hon’ble Supreme Court and by an order dated 11.6.2020, the Hon’ble Supreme Court gave liberty to approach the Hon’ble High Court under Art 226 of the Constitution of India for obtaining wider reliefs.

8. I submit that within few hours after granting liberty by the Hon’ble Supreme Court, DMK party filed Writ Petition in W.P No. 8326 of 2020 before this Hon’ble Court with the following prayer:
“To issue a Writ, Order or Director in the nature of WRIT OF CERTIORARIFIED MANDAMUS calling for the records of the Respondent pertaining to the Result of NEET-PG, 2020 published on 11.04.2020 by the 5th Respondent National Board of Examinations relating to filling up of the State Surrendered Seats of All India Quota in other than Central Educational Institutions and quash the same and direct the Respondents to implement 50% of OBC (BC and MBC) and SC/ST reservations in the state surrendered seats in All India Quota seats (other than in the Central Institutions) in UG, PG and Diploma Medical & Dental Courses for the year 2020-2021 in the State of Tamil Nadu and continue to implement State reservation in respect of other backward classes (BC and MBC) SC/ST as per the Tamil Nadu Act 1994 and in other than Central Institutions and pass such other or further orders as this Hon’ble Court may deem fit to pass and thus render justice.”

9. I further submit that when the above Writ Petition came up for hearing before this Hon’ble Court on 16.6.2020, notice was received by Union of India and the Writ Petition was posted for filing counter and hearing on 22.06.2020 in view of the urgency. I further submit that when the above Writ Petition was taken up for hearing on 22.06.2020, the 1st Respondent took a stand through its counter that this Hon’ble Court should defer the hearing till the Hon’ble Supreme court decides the similar issue in WP (c) No 596 of 2015 filed by Saloni Kumari pending before it and another and that the case is listed for hearing before Hon’ble Supreme Court on 8.7.2020. I respectfully submit that this Hon’ble Court accepted that said stand and posted the matter for hearing on 09.07.2020.

10. I submit that the chronology of events narrated above is only to expose the conduct of the 1st Respondent which was working against granting reservation to the OBC students and applying 69% reservations in the State contributed seats to All India Quota and also to stall the proceedings. Interestingly though in the case pending before Hon’ble Supreme Court in Saloni kumari’s case, a counter affidavit was filed by one Dr B Srinivas son of B Lakshmanaswamy Asst Director General of DGHS in the year 2016 who categorically undertook that Central Government is accepting to implement 27% reservations as found in the Central Educational Institutions ( Reservations in Admissions) Act 2006, however there was no interest evinced to take forward the assurances and undertaking given before the Apex Court by implementing the reservations. Only false promises were made without any actions. Even before this Hon’ble Court, the very same officer Dr B Srinivas son of B Lakshmana swamy Asst Director General of DGHS after lapse of 4 years gave very same undertaking and assurances in pari materia with same undertaking before Hon’ble Supreme Court but did not act upon such assurances and undertaking but was successfully denying and delaying the implementation of reservations. Thus the 1st Respondent was acting in defiance to the 93rd Constitutional Amendment, MCI, DCI regulations and acting discriminately when it handled State contributed seats by selectively discriminating granting of OBC reservations and applying central reservation at 15% for SC and refusing to apply reservations at 18% for SC as contemplated under the TN Act 45/1994. The stand thus taken by the 1st Respondent citing Saloni Kumari’s case preventing the High Court from hearing the matter could be seen as dilatory tactics in order to delay and deny the constitutional reservations that could reach the OBC candidates and SC candidates.

11. I submit that the order of this Hon’ble Court dated 22.06.2020 was immediately challenged before the Hon’ble Supreme Court of India in SLP No. 8081-8082 of 2020 and the Hon’ble Supreme Court summoned all the case papers relating to Saloni Kumari. After thoroughly going through the pleadings, the Hon’ble Supreme Court by its order dated 13.07.2020 held that the issues in Saloni Kumari Case in WP (C) No 596 of 2015 is different from the Writ Petitions pending before Madras High Court and therefore requested the Madras High Court to hear the Writ Petitions and decide expeditiously.
12. I submit that pursuant to the orders of Hon’ble Suprme Court, this Hon’ble Court heard the above Writ Petition on 17.07.2020 and by a well-considered judgment dated 27.07.2020 held that
a. Benefit of reservation for OBC is legally permissible and that there is no legal or constitutional impediment to extend the benefit of 69% reservation to the candidates in the State contributed seats to the All India Quota seats of the Under-graduate and Post-graduate medical courses in the State-run medical colleges in the State of Tamil Nadu.
b. That a 4 member committee should be formed to decide upon the manner in which it should be applied.
c. The Hon’ble High Court has specially referred the issue to committee for providing the terms of implementation of such reservation as claimed by the petitioners, and directed the Union of India through the Director General of Health Services, Ministry of Health and Family Welfare, to convene a meeting along with the Health Secretary, Government of Tamil Nadu and the Secretaries of the Medical Council of India and the Dental Council of India in order to finalise the manner in which the OBC reservation is to be applied in the All India Quota seats in the UG/ PG courses with effect from the next academic year.
d. That the committee should bear in mind the state reservation
e. The Hon’ble High Court of Madras in its order dated 27.07.2020 made it abundantly clear that the directions given by the Hon’ble Court shall be complied with and the decision should be announced by the Central Government within three months. (i.e) on or before 27.10.2020.

13. I submit that the relevant portion of the judgement is extracted hereunder for ready reference.
“105. To apply this on principle, the matter has to be resolved between the State Government and the Central Government with the participation of the Medical Council of India as well as the Dental Council of India and in this view of the matter, we find that it would be appropriate that the issue is referred to a Committee for providing the terms of implementation of such reservation as claimed by the petitioners, which can only be done with regard to the courses that are to be run in future and not in present academic year as that would disturb entire selections that have already been set into motion and are likely to be concluded under the existing scheme. This exercise, therefore, has to be taken with the participation of all these three Organs and for which, we direct the Union of india through the Director General of Health Services, Ministry of Health and Family Welfare, to convene a meeting along with the Health Secretary, Government of Tamil Nadu and the Secretaries of the Medical Council of India and the Dental Council of India in order to finalise the manner in which the facilities of OBC reservation are to be provided for against All India Quota seats in the UG/PG courses with effect from the next academic year as already proposed by the Central Government and discussed hereinabove.
106. In case, any of the parties intend to contend that they need some clarification from the Apex Court, it is open to them to approach the Apex Court for any such clarification, but the directions given herein shall be complied with and the decision with regard to the implementation of the percentage of reservation that may be offered as indicated above may be announced by the Central Government preferably within three months.”

14. I submit that the Judgment of this Hon’ble Court dated 27.07.2020 was challenged before the Hon’ble Supreme Court of India by the State Government in SLP No. 9286 of 2020 and by 6th Respondent and the Hon’ble Supreme Court of India refused to stay the order of the Hon’ble High Court of Madras or pass any interim order when the above SLP came up for admission on 14.8.2020.

15. I submit that the 1st Respondent has formed the committee on 07.09.2020 with the following persons in violation of the directions of this Hon’ble Court dated 27.7.2020:-
(i) Dr BD Athani Pr. Consultant DGHS – Chairman
(ii) Dr P. Umanath, MD, TN Medical Services Corproation Member
(iii) Dr R K Vats, Seretary General- BoG- MCI – Member
(iv) Dr Sabyasachi Saha, Secretary , Dentral Council of India – Member
(v) Dr B Srinivas ADG(ME)
The Health Secretary of Government of Tamil Nadu and the Director of General of Health Services are not made as part of Committee which is blatantly in violation of the order passed by this Hon’ble Court. The 9th Respondent herein has nominated the Tamil Nadu Medical Services Corporation Member instead of the Health Secretary of Government of Tamil Nadu when there is a specific direction that Committee should have the Health Secretary of Government of Tamil Nadu. The 1st and 3rd Respondent in gross, wilful disobedience of the directions of this Hon’ble Court, knowing fully well that the committee should consist of the Director General of Health Services himself has formed this Committee. Thus it could be seen that the reason for indecisiveness is that the Committee is not constituted with the right persons as directed by the High Court.
16. I submit that terms of reference at Paragraph 2 of the proceedings dated 07.09.2020 of the Committee itself is against the purpose for formation of the committee as ordered by the Hon’ble Madras High Court which reads as follows:-
“To finalise the manner in which the facilities of OBC reservation are to be provided for against All India Quota Seats in UG/PG Courses in the State of Tamilnadu…”
Contrary to the directions of this Hon’ble Court, the Respondents have referred only OBC reservations to the Committee. The Petitioner is unable to understand why the Tamil Nadu Government did not object for such constitution of an improper Committee with a modified terms of reference by the 1st Respondent. This modified ToR confining only to the OBC students leaves the interests of Scheduled Caste students in the lurch, and will ultimately also drag the issue beyond 3 months. Hence the Respondents 6 and 9 have also deliberately violated the orders of this Hon’ble Court with impunity .

17. I submit that 1st Respondent has filed a counter affidavit in SLP No 9286 of 2020 through the very same officer Dr B Srinivas Asst Director General of DGHS that the committee’s meeting was held on 22.9.2020. Along with the counter affidavit minutes of meeting dated 22.9.2020 was filed and it is evident that no decision in terms of the orders of Madras High Court has been taken till today viz within 3 months from 27.7.2020.

18. I submit that the Hon’ble Supreme Court of India on 26.10.2020 in the Civil Appeal No 3518 of 2020 while declining to grant any interim order and while refusing to interfere with the orders of this Hon’ble Court held that
“8. …….It is no doubt that the High Court accepted the submissions of the Appellants that the 1993 Act can be made applicable to the All India Quota Seats………..”

The Hon’ble Apex Court vide the above referred observation, made it abundantly clear and reiterated the directions of this Hon’ble Court dated 27.7.2020 that the 69% reservation should be applied to the State contributed seats to All India Quota. Therefore the terms of reference should be in line with applying 69% reservations as directed by this Hon’ble Court and observed by Hon’ble Supreme Court. However, to the contrary, the terms of reference made by 1st Respondent confining to OBC reservations alone is highly contumacious. In fact vide its interim orders the Hon’ble Supreme Court has confirmed the order of this Hon’ble Court dated 27.7.2020 appointing the committee and implementation of reservations as per the 1993 State Act.

19. I further submit that there is a wilful and deliberate disobedience of the order of this Hon’ble Court dated 27.07.2020 in the constitution of Committee formed by 1st Respondent on 07.09.2020 as the Health Secretary of Government of Tamil Nadu and the Director General of Health Services are not made part of committee which is blatantly against the order passed by the Hon’ble Madras High Court. The indecisiveness in applying 69% reservation in All India Quota which is prevailing even till today is because of the committee not having the correct members as directed by the Hon’ble High Court. The specific direction of the Hon’ble High Court that the decision of the committee should be made within 3 month (i.e) 27.10.2020 has also been wilfully and blatantly violated with all impunity. Thus all the respondents have deliberately failed to comply with the orders of the Hon’ble High Court in true letter and spirit. Due to the indecisiveness the purpose for formation of committee and the decision to grant 69 % reservations in the All India Quota in the State contributed seats thus stands defeated. The Respondents are deliberately delaying the implementation of the orders of this Hon’ble Court and are defying the directions to implement the reservations in the All India Quota for the ensuring Academic year 2021 onwards. It’s a common knowledge that the prospectus is printed in December and the NEET exams are conducted in January of every year for the admissions in that academic year in the PG Courses at the first instance and thereafter for the UG Courses. Therefore for printing prospectus in December, the Respondents are deliberately defying the compliance of the order with a sole object of overcoming the orders of this Hon’ble Court. Hence the Respondents have deliberately violated the orders of this Hon’ble Court dated 27.7.2020 and hence the Respondents have to be punished for the same.

20. I humbly submit that Contempt Notice was issued to the Respondents herein on 04.11.2020 and the Respondents, after receipt of the notice, neither replied nor denied the contents of the same and therefore their wilful and deliberate disobedience of the order of this Hon’ble Court is clearly proved by their stoic silence and hence this contempt petition.

21. I further submit that 9th respondent is also necessary party to the present Contempt Petition since he has deliberately violated with impunity the order of this Hon’ble Court dated 27.07.2020 in W.P No. 8326 of 2020 by nominating Tamil Nadu Medical Services Corporation Member instead of Health Secretary of Government of Tamil Nadu in the Committee and hence he is made as party Respondent. It is well settled that any person who wilfully and deliberately impedes the execution of any judgement or decree of a Court also commits contempt.

22. It is therefore humbly prayed that this Hon’ble Court may be pleased to accept the cause title in the above Contempt Petition and pass such further or other orders as this Hon’ble Court may deem fit and proper to pass in the facts and circumstances of the case and thus render justice.

23. For the foregoing reasons, it is humbly prayed that this Hon’ble Court may be pleased to punish the Respondents 1 to 9 herein for wilful disobedience of the order passed by this Hon’ble Court dated 27.07.2020 in W.P No. 8326 of 2020 and pass such further or other orders as this Hon’ble Court may deem fit and proper to pass in the facts and circumstances of the case and thus render justice.

DEPONENT

Solemnly affirmed at Chennai
on this the day of November
2020 and signed her name in
my presence and identified by me.
BEFORE ME

ADVOCATE, CHENNAI.

 

 

 

 

 

 

 

 

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