JUDGMENT M.Satyanarayana Murthy, J. - This contempt case is filed under Sections 10 to 12 of Contempt of Courts act, 1971, by the petitioners - Dr.C.Sunitha and Dr.a.Sudha Rani to punish the contemnor - respondent for disobedience or deliberate flouting of the order dated 05.01.2021 passed by this Court in W.P.No.23501 of 2020. 2. The petitioners filed writ petition questioning the proceedings issued by the respondent in Rc.No.8171/E1-a/2019 dated 14.10.2020. On 05.01.2021 this Court granted interim suspension of the impugned order for a period of two (2) months. 3. The petitioners herein are the writ petitioners, who filed the writ petition for the relief stated above alleging that they are eligible, qualified and entitled to be promoted as associate Professors OBG. Petitioner No.1 was appointed as assistant Professor OBG on 03.02.2010 and petitioner No.2 was appointed as assistant Professor OBG on 12.03.2010. Both petitioners have put in the required minimum service of 5 years in the category of assistant Professors and they are eligible to be considered and promoted as associate Professors for the panel year 2020-21. While so, the Government of andhra Pradesh has issued G.O.Ms.No.163, HM&FW dated 16.10.17 extending the Career advancement Scheme as per UGC Guidelines. accordingly, the pay scale of both the petitioners were fitted into the associate Professors pay scale vide Proceedings dated 18.01.2019 with effect from 01.09.2015. This is only a fitment of pay scale and not regular promotion as associate Professors. 4. For panel year 2018-19, there were no vacancies for the post of associate Professors in Kurnool Medical College. The Vacancy position was displayed showing as NIL for Kurnool Medical Colleges. Vacancy position was displayed to all other medical colleges, except Kurnool Medical College. For the purpose of filling up the vacancies of associate Professors for the panel year 2018-19. Respondent No.1 vide intimation dated 04.02.2019 conducted counselling which was held on 07.02.2019. accordingly, three seniors to these petitioners have attended the said Counselling and were promoted as associate Professors. They have accepted the promotions as associate professors. But when it came to joining the posts, they have not joined at the place of posting. They wanted to continue at Kurnool only. There were no vacancies of associate Professors at Kumool during the panel year 2018-19. No vacancy was shown at Kurnool.
They have accepted the promotions as associate professors. But when it came to joining the posts, they have not joined at the place of posting. They wanted to continue at Kurnool only. There were no vacancies of associate Professors at Kumool during the panel year 2018-19. No vacancy was shown at Kurnool. Once they have accepted the promotions they are bound to go and join at the places they were posted i.e. outside Kurnool. But deliberately they did not join. 5. For the next panel year i.e. 2019-20 also there were no vacancies of associate Professors in Kurnool Medical College. On 09.01.2020, respondent No.1 has prepared Screening Committee Proposals for the panel year 2019-20. Surprisingly, the names of the three seniors who were promoted for the vacancies of the panel year 2018-19, were again shown in the list and they figured at Serial Nos.1, 23 and 62 respectively. Respondent No.1 vide communication dated 13.10.2020 has displayed the names of persons who were promoted as associate Professors OBG and also the vacancy position. In so far as the Speciality OBG is concerned, four persons were promoted as associate Professors viz. (1) Dr. G.S.Snigdha, assistant Professor of OBG, Kurnool Medical College, Kurnool (2) Dr. K.Sreelatha, assistant Professor of OBG, Kurnool (3) Dr K.Kavita,, assistant Professor of OBG, Kurnool Medical College, Kurnool and (4) Dr T.Sudha, working at aMC Vizag. (1) GMC anathapuramau-1; (2) GMC Ongole (1); (3) SMC Vijayawada-1; (4) SCSR GMS Nellore-1. 6. Therefore, these three seniors were once again considered and promoted as associate Professors in the vacancies shown. It is significant to note that there are no vacancies at Kurnool. 7. For the panel year 2020-21, due to promotion of certain associate Professors as Professors, there arose 3 vacancies at Kurnool Medical College for the panel year 2020-21. For these panel years these petitioners are eligible and entitled to be promoted. Their respective spouses are working in Kurnool and hence they are entitled to be considered for posting at Kurnool Medical College. While so by the order dated 09.01.2020, respondent i.e. the DME has posted these three seniors as associate Professors at Kurnool where admittedly there is no vacancy. Thus they are occupying the posts which are meant to be thrown open for the promotees of 2020-21 panel year. By their illegal postings, the petitioners are put to severe loss and injury. 8.
Thus they are occupying the posts which are meant to be thrown open for the promotees of 2020-21 panel year. By their illegal postings, the petitioners are put to severe loss and injury. 8. The petitioners gave representation during October, 2020 to respondent No.1, but no action was taken. However, the petitioners filed W.P.No.23501 of 2020. This Court vide order dated 05.01.2021 suspended the impugned proceedings initially for a period of 2 months. But the respondent did not implement the order and violated the direction issued by this Court and permitted the three persons to continue to work as associate Professors in Kurnool Medical College. 9. For the panel year 2021-22 vacancies have to be filled up in the posts of associate Professors OBG. The petitioners requested information under RTI act relating to the vacancy position. Respondent vide letter dated 23.09.2021 stated that in so far as Kurnool Medical College is concerned, there are 5 sanctioned posts and at present there is no vacancy. This means that the said three persons whose order of posting at Kurnool Medical College was suspended were also included in the above vacant position which is in utter violation of the orders of this court. When the Court suspended their orders of posting on promotion to Kurnool Medical College, these posts should remain vacant. They cannot be shown as being filled up, which in utter violation of the order passed by this Court. Therefore, the respondent - contemnor violated the order intentionally, thereby liable for punishment for the contempt of Court, requested to punish the respondent. 10. Respondent filed counter denying material allegations interalia contending that the promotions to the posts of associate Professor of OBG was done by DPC on 31.08.2020 based on the seniority declared in the cadre of assistant Professors and displayed on the DME website and circulated. The cadre of assistant Professor is promoted as associate Professor based on G.O.Ms.No.154 HM&FW (a2) department dated 04.05.2002 which takes into consideration the seniority in the cadre of assistant Professors. 11. Petitioner No.1 - Dr.C.Sunitha, asst. Professor of OBG. KMC, Kurnool was at Serial No.317. Petitioner No.2 - Dr. a.Sudha Rani, asst. Professor of OBG, KMC, Kurnool was at serial No.322. Respondent Nos.2 to 4 in the main writ petition viz. Dr. G.S.Snigdha was at Serial No 180 (a) based on the revised seniority on 09.09.2019, Dr.
11. Petitioner No.1 - Dr.C.Sunitha, asst. Professor of OBG. KMC, Kurnool was at Serial No.317. Petitioner No.2 - Dr. a.Sudha Rani, asst. Professor of OBG, KMC, Kurnool was at serial No.322. Respondent Nos.2 to 4 in the main writ petition viz. Dr. G.S.Snigdha was at Serial No 180 (a) based on the revised seniority on 09.09.2019, Dr. K.Sreelatha was at Serial No. 218 and Dr.K.Kavitha was at Serial No. 239. Based on the above seniority list Dr. C.Sunitha and Dr. a.Sudha Rani, the petitioners are juniors to all the three respondents i.e. No. 2 to 4. 12. The petitioners are not questioning the seniority or the DPC in which the respondents were promoted as associate Professors. DPC was held on 31.08.2020. The list of assistant Professors who cleared the DPC was displayed and counselling was held for place of posting on 13.10.2020. Based on the vacancies, posting orders were issued. Subsequently, fresh vacancies arose in which the respondents were posted at Kurnool Medical College, Kurnool as associate Professors in OBG Department. Thus, respondent No.1 did not violate the rule of seniority in promoting the assistant Professors as associate Professors of OBG. Dr. K.Sreelatha and Dr. K.Kavitha were promoted in the previous year panel of 2019 and have foregone their promotion and not joined as associate Professors which has been recorded. Every Doctor in all cadres has two time options to forego any promotion. Hence, they were considered and promoted in the DPC held on 31.08.2020. Thus, there is no violation much less wilful violation of order passed by this Court on 05.01.2021. 13. During hearing, Dr.K.Lakshmi Narasimha, learned counsel for the petitioner, would contend that though the proceedings in Rc.No.8171/E1-a/2019 dated 14.10.2020 were suspended, respondent - contemnor continued respondent Nos.2 to 4 as associate Professors at Kurnool Medical College in violation of the order though no vacancies were available for panel year 2020-21. Posting respondent Nos.2 to 4, though no vacancies were available at Kurnool Medical College, despite suspension of proceedings, amounts to intentional violation or disobedience of order of this Court. Consequently, respondent is liable for punishment under Section 12 of the Contempt of Courts act, 1971. 14. Sri Vadapalli Ramesh, learned counsel for the contemnor, would contend that the question of violation of the Order of the Court does not arise as on the date of passing the Order on 05.01.2021.
Consequently, respondent is liable for punishment under Section 12 of the Contempt of Courts act, 1971. 14. Sri Vadapalli Ramesh, learned counsel for the contemnor, would contend that the question of violation of the Order of the Court does not arise as on the date of passing the Order on 05.01.2021. respondent Nos.2 to 4 are already working as associate Professors in Kurnool Medical College. In support of this contention, he placed reliance on the judgment of the apex Court in 'State of Jammu and Kashmir v. Mohd. Yaqoob Khan (1992) 4 SCC 167 '. On the strength of the above judgment, learned counsel for respondent requested to exonerate the respondent, finding him not guilty in the contempt case. 15. It is an undisputed fact that this Court passed an order on 05.01.2021 suspending the proceedings in Rc.No.8171/E1-a/2019 dated 14.10.2020 by which the respondents were posted at Kurnool Medical College, Kurnool. When the proceedings impugned in the writ petition are suspended, respondent Nos.2 to 4 in the writ petition shall not be continued as associate Professors at Kurnool Medical College, Kurnool and there were no vacancies prima facie in the cadre of associate Professor in Kurnool Medical College by then. It appears that their continuation as associate Professors at Kurnool Medical College despite non-availability of vacancies is to accommodate them to continue at Kurnool Medical College after vacancies arose in the particular cadre. Even though respondent Nos.2 to 4 given up their promotion once, they were considered in the next panel year, despite non-availability of vacancies, they were accommodated at the same place, which is illegal prima facie. Therefore, this Court suspended the impugned proceedings, but the merits of the order cannot be decided in the present contempt case. If really, the contemnor is aggrieved by any order of this Court, it is open to him to challenge the same in the intra-Court appeal, but without exhausting such remedy of appeal, respondent cannot give any different interpretation to the order to avoid implementation of the order. 16. In the entire counter, respondent explained the procedure followed by DPC while publishing the vacancy position and eligible candidates for being considered for the post of associate Professor of OBG. But for two panel years, no vacancies were available, still respondent accommodated those who were promoted as associate Professors in Kurnool Medical College, Kurnool despite suspension of order.
16. In the entire counter, respondent explained the procedure followed by DPC while publishing the vacancy position and eligible candidates for being considered for the post of associate Professor of OBG. But for two panel years, no vacancies were available, still respondent accommodated those who were promoted as associate Professors in Kurnool Medical College, Kurnool despite suspension of order. Contentions raised in the counter filed by the respondent in the contempt case explaining the procedure followed by respondent for promoting respondent Nos.2 to 4 in the main writ petition need not be examined by this Court in the present contempt case and the jurisdiction of this Court is limited. 17. While dealing with an application for contempt the Court cannot traverse beyond the order, non-compliance of which is alleged. In other words, it cannot say what should not have been done or what should have been done. It cannot traverse beyond the order. It cannot test correctness or otherwise of the order or give additional direction or delete any direction. That would be exercising review jurisdiction while dealing with an application for initiation of contempt proceedings. The same would be impermissible and indefensible. (Vide: Prithavi Nath Ram v. State of Jharkhand aIR 2004 SC 4277 ) Therefore, in view of the limited jurisdiction, this Court is required to examine whether the contemnor violated the order intentionally. If the Court finds that the contemnor violated the order, the Court has to impose punishment against the contemnor in accordance with law and no other course is open to the Court. 18. In the present case, the impugned proceedings in the writ petition were suspended. In such case, the persons, who were posted at Kurnool have to be accommodated at different place where vacancies are available. Instead of implementing the direction issued by this Court, the contemnor continued respondent Nos.2 to 4 in the writ petition in the same college so as to accommodate them in the vacancies likely to arise during the next panel year, prima facie. Therefore, such conduct directly amounts to violation of order of this Court since the contemnor being a Director is conscious about the ill-consequences that flow from such violation. Therefore, this Court can safely conclude that the contemnor violated the order consciously and intentionally. 19.
Therefore, such conduct directly amounts to violation of order of this Court since the contemnor being a Director is conscious about the ill-consequences that flow from such violation. Therefore, this Court can safely conclude that the contemnor violated the order consciously and intentionally. 19. The Contempt of Court is defined under Section 2(a) as follows: "contempt of court means, civil contempt or criminal contempt", Whereas clause (b) of Section 2 defines Civil Contempt as 'willful disobedience to any judgment, decree, direction, order, writ or other process of a court or wilful breach of an undertaking given to a court.' 20. In view of definition under Section 2(b) of the Contempt of Courts act, non-compliance or deviation of the order of the Court would construe civil contempt. The Contempt jurisdiction is not conferred on the Subordinate Courts and it is only conferred on the Court of record, in view of article 215 of the Constitution of India. according to it, the High Court shall be a Court of record and shall have all the powers of such a Court, including the power to punish for contempt of itself. The jurisdiction of contempt is independent jurisdiction of its original nature. Therefore, this Court is competent to exercise such power to punish a person, who is guilty of contempt and this jurisdiction is enjoyed by Courts, is only for the purpose of upholding the jurisdiction of the judicial system that exists. While exercising this power, the Court must not react by the emotion, but must act judicially. Contempt proceedings are intended to ensure compliance of the orders of the Court and strict adherence of rule of law. Once, the essentials for initiation of contempt proceedings are satisfied, the Court shall initiate action, uninfluenced by the nature of direction in a pending lis before the Court vide judgment in Priya Gupta and others vs.additional Secretary, Ministry of Health and Family Welfare and others JT 2013 (1) SC 27, 2012 (12) SCaLE 289 ). Contempt jurisdiction enjoyed by the Courts is only for the purpose of upholding the majesty of judicial system that exists. While exercising this power, the Courts must not be hyper sensitive or swang by emotions, but must act judicially (Vide:Chairman, West Bengal administrative Tribunal vs. SK.Monobbor Hossain (2012)3 SCaLE 534 ). 21. 'Contempt' is disorderly conduct of contemnor causing serious damage to the institution of justice administration.
While exercising this power, the Courts must not be hyper sensitive or swang by emotions, but must act judicially (Vide:Chairman, West Bengal administrative Tribunal vs. SK.Monobbor Hossain (2012)3 SCaLE 534 ). 21. 'Contempt' is disorderly conduct of contemnor causing serious damage to the institution of justice administration. Such conduct, with reference to its adverse effects and consequences, can be discernibly classified into two categories one which has a transient effect on the system and/or the person concerned and is likely to wither by the passage of time while the other causes permanent damage to the institution and administration of Justice (Vide: Kalyaneshwari vs. Union of India and others (2011) 6 SCaLE 220 ). 22. When once an order is passed, it is the duty of the authorities to implement the same without giving any interpretation and if the order is contrary to law, they are at liberty file appropriate appeal before the appellate authority. But, without preferring an appeal, the respondent/contemnor cannot interpret the order and give different meaning to the order passed by the Court, which is sought to be implemented, as directed by this Court and such act of the respondent/contemnor is illegal in view of the law declared by the Hon'ble apex Court in Commissioner, Karnataka Housing Board vs. C. Muddaiah (2007) 7 SCC 689 , wherein, it is held as follows: 31. We are of the considered opinion that once a direction is issued by a competent Court, it has to be obeyed and implemented without any reservation. If an order passed by a Court of Law is not complied with or is ignored, there will be an end of Rule of Law. If a party against whom such order is made has grievance, the only remedy available to him is to challenge the order by taking appropriate proceedings known to law. But it cannot be made ineffective by not complying with the directions on a specious plea that no such directions could have been issued by the Court. In our judgment, upholding of such argument would result in chaos and confusion and would seriously affect and impair administration of justice. The argument of the Board, therefore, has no force and must be rejected. 32. The matter can be looked at from another angle also.
In our judgment, upholding of such argument would result in chaos and confusion and would seriously affect and impair administration of justice. The argument of the Board, therefore, has no force and must be rejected. 32. The matter can be looked at from another angle also. It is true that while granting a relief in favour of a party, the Court must consider the relevant provisions of law and issue appropriate directions keeping in view such provisions. There may, however, be cases where on the facts and in the circumstances, the Court may issue necessary directions in the larger interest of justice keeping in view the principles of justice, equity and good conscience. Take a case, where ex facie injustice has been meted out to an employee. In spite of the fact that he is entitled to certain benefits, they had not been given to him. His representations have been illegally and unjustifiably turned down. He finally approaches a Court of Law. The Court is convinced that gross injustice has been done to him and he was wrongfully, unfairly and with oblique motive deprived of those benefits. The Court, in the circumstances, directs the authority to extend all benefits which he would have obtained had he not been illegally deprived of them. Is it open to the authorities in such case to urge that as he has not worked (but held to be illegally deprived), he would not be granted the benefits? Upholding of such plea would amount to allowing a party to take undue advantage of his own wrong. It would perpetrate injustice rather than doing justice to the person wronged. We are conscious and mindful that even in absence of statutory provision, normal rule is 'no work no pay'. In appropriate cases, however, a Court of Law may, nay must, take into account all the facts in their entirety and pass an appropriate order in consonance with law. The Court, in a given case, may hold that the person was willing to work but was illegally and unlawfully not allowed to do so. The Court may in the circumstances, direct the authority to grant him all benefits considering 'as if he had worked'.
The Court, in a given case, may hold that the person was willing to work but was illegally and unlawfully not allowed to do so. The Court may in the circumstances, direct the authority to grant him all benefits considering 'as if he had worked'. It, therefore, cannot be contended as an absolute proposition of law that no direction of payment of consequential benefits can be granted by a Court of Law and if such directions are issued by a Court, the authority can ignore them even if they had been finally confirmed by the apex Court of the country (as has been done in the present case). The bald contention of the appellant-Board, therefore, has no substance and must be rejected. In The State of Bihar vs. Rani Sonabati Kumari aIR 1961 SCC 221, the Hon'ble Supreme Court while dealing with violation of order passed under Order XXXIX Rules 1 & 2 of Civil Procedure Court, held that, 'a party proceeded against Order XXXIX Rule 2(3) of C.P.C for disobedience of an order of injunction cannot be held to have willfully disobeyed the order provided two conditions are satisfied viz., (1) that the order was ambiguous and was reasonably capable of more than one interpretation (2) that the party being proceeded against in fact did not intend to disobey the order, but conducted himself in accordance with his interpretation of the order. The question whether a party has understood an order in a particular manner and has conducted himself in accordance with such a construction is primarily one of-fact, and where the materials before the Court do not support such a state of affairs, the Court cannot attribute an innocent intention based on presumptions, for the only reason, that ingenuity of Counsel can discover equivocation in the order which is the subject of enforcement. Though undoubtedly proceedings under Order XXXIX Rule 2(3) of C.P.C have a punitive aspect - as is evident from the contemnor being liable to be ordered to be detained in civil prison, they are in substance designed to effect the enforcement of or to execute the order. This is clearly brought out by their identity with the procedure prescribed by Order XXI Rule 32 of C.P.C for execution of a decree for permanent injunction.
This is clearly brought out by their identity with the procedure prescribed by Order XXI Rule 32 of C.P.C for execution of a decree for permanent injunction. No doubt the State Government not being a natural person could not be ordered to be detained in civil prison, On the analogy of Corporations; for which special provision is made in Order XXXIX Rule V C.P.C, but beyond that, both when a decree for a permanent injunction is executed and when an order of temporary injunction is enforced the liability of the State Government to be proceeded against appears to us clear.' 23. Learned counsel for respondent - contemnor relied on 'State of Jammu and Kashmir v. Mohd. Yaqoob Khan' (referred supra), wherein the Supreme Court held as follows: 'We find great force in the argument of Mr. Salve that so long the stay matter in the writ petition was not finally disposed of, the further proceeding in the contempt case was itself misconceived and no orders therein should have been passed. Mr. Bhandare appearing on behalf of the writ petitioner, who is respondent before us, has strenuously contended that the orders passed in the contempt proceedings should be treated to have disposed of the stay matter in the writ petition also. He laid great emphasis on the fact that the counsel for the respondents in the writ petition had been heard before the orders were issued. He invited our attention to the merits of the claim. It is argued that the order .dated March 19,1990 must, in the circumstances, be treated to have become final and, therefore, binding on the State and the High Court was right in issuing the further direction by way of implementation of earlier order. We do not agree. The scope of a contempt proceeding is very different from that of the pending main case yet to be heard and disposed of (in future). Besides, the respondents in a pending case are at a disadvantage if they are called upon to meet the merits of the claim in a contempt proceeding at the risk of being punished. It is, therefore, not right to suggest that it should be assumed that the initial order of stay got confirmed by the subsequent orders passed in the contempt matter.
It is, therefore, not right to suggest that it should be assumed that the initial order of stay got confirmed by the subsequent orders passed in the contempt matter. We, therefore, hold that the High Court should have first taken up the stay matter without any threat to the respondents in the writ case of being punished for contempt. Only after disposing it of, the other case should have been taken up. It is further significant to note that the respondents before the High Court were raising a serious objection disputing the claim of the writ petitioner. Therefore, an order in the nature of mandatory direction could not have been justified unless the Court was in a position to consider the objections and record a finding, prima facie in nature, in favour of the writ petitioner. Besides challenging the claim on merits, the respondent is entitled to raise a plea of non-maintainability of a writ application filed for the purpose of executing a decree. It appears that at an earlier stage the decree in question was actually put in execution when the parties are said to have entered into a compromise. according to the case of the State the entire liability under the decree (read with the compromise) has already been discharged. The dispute, therefore, will be covered by Section 47 of the CPC. It will be a serious question to consider whether in these circumstances the writ petitioner was entitled to maintain his application under article 226 of the Constitution at all. We do not want to decide any of these controversies between the parties at this stage except holding that the orders passed in the contempt proceeding were not justified, being pre-mature, and must, therefore, be entirely ignored. The High Court should first take up the stay matter in the writ case, and dispose it of by an appropriate order. Only thereafter it shall proceed to consider whether the State and its authorities could be accused of being guilty of having committed contempt of Court.' 24. The present case is not identical to the facts of the above judgment for the reason that the interim order was passed in the present case after hearing both the counsel for the petitioners and learned Government Pleader, it was not ex parte order. Hence, by applying the principle laid down in the above judgment, the contempt case cannot be closed. 25.
Hence, by applying the principle laid down in the above judgment, the contempt case cannot be closed. 25. In the present facts of the case, respondent herein continued respondent Nos.2 to 4 in the writ petition, as associate Professors in Kurnool Medical College though the proceedings, by which they were posted, were suspended. Since it is a motivated act of contemnor prima facie to accommodate respondent Nos.2 to 4 in the writ petition in the next panel year as associate Professors, in view of the law declared by the apex Court in the judgments (referred supra), this Court has no option except to punish the contemnor herein for wilful violation of order of this Court. 26. as discussed above, and in view of the findings recorded by me in the above paragraphs, Respondent/contemnor is liable for punishment as per Section 12 of the Contempt of Courts act, 1971. 27. In the result, contempt case is allowed, directing the Respondent/Contemnor - Dr. M.Raghavendra Rao, Director of Medical Education, andhra Pradesh, to undergo simple imprisonment for a term of three (03) months and to pay a fine of Rs.2,000/- (Rupees two thousand only). In the event of failure to pay fine of Rs.2,000/-, Registrar (Judicial) is directed to send copy of the order to the District Collector concerned for recovery of amount of fine under the andhra Pradesh Revenue Recovery act, 1864 and by following procedure as per law. 28. Respondent/Contemnor - Dr. M.Raghavendra Rao, Director of Medical Education, andhra Pradesh is directed to appear before the Registrar (Judicial), High Court of andhra Pradesh, on 25.04.2022. On his appearance, the Registrar (Judicial) shall commit him to civil prison in accordance with the order passed above. 29. Consequently, miscellaneous applications pending if any, shall stand closed. 30. after pronouncing the above order, learned counsel for Respondent/Contemnor requested this Court to suspend the above order, so as to enable him to prefer an appeal. 31. at request of the learned counsel for Respondent/ Contemnor, the above order is suspended for a period of one (01) week to prefer appeal(s). In case no appeal(s) is/are preferred or no stay is granted by the appellate Court in the appeal, if any preferred, Respondent/Contemnor shall surrender before Registrar (Judicial), High Court of andhra Pradesh on 29.04.2022 before 05.00 p.m. to undergo sentence as stated supra.