High Court · 2012

All the writ petitions structured more or less on the same set of facts, have been heard analogously and are being disposed of by this common judgment a nd order. Learned counsel for the parties have made their submissions referring to the writ petition being W.P.(C) No. 3094/2012.

2. I have heard Mr. G.N. Sahewalla, learned Sr. counsel assisted by Mr. S. Mohendro and Mr. M. N. Anix Singh, learned counsel for the petitioners. I have a lso heard Mr. Th. Ibohal Singh, learned Sr. G.A., Manipur alongwith Mr. K.R. Bar uah, learned counsel for the State respondents. I have also heard Mr. Genanda, l earned counsel appearing for the respondent No. 3, i.e. Manipur Public Service C ommission as well as Mr. M. Bhuyan alongwith Mr. P. Hazarika, learned counsel ap pearing for the private respondents. I have also considered the entire materials on record.

3. At the time of filing of the writ petitions in the year 2006, the petiti oners were functioning in the cadre of MHS Grade-III (Formerly Grade-IV). It was contended that they were eligible for promotion to the next higher grade, i.e. MHS Grade-II. It was also contended that although they had the requisite qualifi cation, i.e. Post Graduate Degree in their respective specialities, but due to n on-availability of the adequate number of vacancies in the specialised posts, th ey could not be offered promotion.

4. The petitioners became aggrieved when the advertisement was issued by th e Manipur Public Service Commission (MPSC) for filling up 5 (five) posts of MHS Grade-II (Senior Specialist); 2 (two) posts in Gynaecology; 2 (two) in Paediatri cs and 1 (one) in Anaesthesiology. According to the petitioner such move on the part of the appointing authority was in violation of the Rules holding the field .

5. Referring to the provisions of Manipur Health Services Rules, it is the case of the petitioners that cadre strength of MHS Grade-II had been increased to 64 from the existing 48 with corresponding increase of specialist posts to 3 3 from 20. The aforesaid MHS Service Rules provides for induction of specialist in MHS Grade-III, Grade-II and Grade-I through lateral entry in the ratio of 25 % only of specialised posts. It has been stated in the writ petition that Rules do not provide specifically as to how and under what circumstances/criteria 25% specialist posts are to be identified speciality wise. According to the petition er, taking advantage of the lacunae, the State Govt. without verifying and proce ssing the identification of the requirement of speciality concerned and need for undertaking, issued the impugned notification/advertisement inviting applicatio ns from the eligible candidates for filling up the aforesaid posts in MHS Grade- II. In paragraph- 9 of the writ petition, it has been stated thus:

6. (cid:28)9. That, it is stated that provision for lateral entry in case of Specialist Po st in Grade-II and/or the posts in Grade-I has been mainly made and conceived in the Manipur Health Service to strengthen specialist service and to attract new specialist in discipline only in case where no eligible officer is available on the date when the vacancy occurs and no one will be eligible for a period of twe lve months from such date or if the Selection Committee does not consider any of the eligible officers as suitable and upon failure to fill up the post by deput ation for the period of not exceeding 5 years or by direct recruitment as in the present case will have to be determined by the Government in consultation with the Commission on each occasion. Thus, in the instant case the pre-conditions prescribed in Rules should be first strictly adhere to before it is notified/advertised for filling up. Had the authority constituted any DPC/Selection Committee for filling up the afores aid 5 (five) posts of Senior Specialist and found no Suitable/eligible officer f or the post, petitioners would have under stood the need of such a Specialist in the Manipur Health Service. Therefore, the Executive Committee of Manipur Healt h Service (MHS) Officers’ Association held a meeting on 19.05.2006 at the premis es of the Medical Directorate, Lamphelpat to discuss in detail the present proce ss of recruiting Specialist through Lateran Entry posts. In the meeting so held, the association finds no valid reason and logic on why and how the above Specia lities only in some disciplines were identified at the cost of other Specialit ies. As such the General Secretary of the Manipur Health Service (MHS) Officers Association on behalf of its members submitted a representation on 22.05.2006 re questing the authorities to withhold the recruitment process of altogether 9 (ni ne) posts including 2 (two) post of MHS Grade-II (Senior Specialist in Gynaecol ogy), 2 (two) post of MHS Grade-II (Senior Specialist in Paediatrics) and 1 (one ) post of MHS Grade-II (Senior Specialist in Anaesthesiology) in Manipur Health Service through lateral entry until and understanding is reached between the Gov ernment and the Manipur Health Service Officers’ Association. However, till toda y authority have not taken any decision pursuant to the said representation of t he Health Service Officers’ Association thereby showing their ill-intention for filling up the said post through Lateral Entry. (cid:29)

7. According to the petitioners though the MHS Rules, 1982 and its subseque nt amendments do not provide any guiding principle for verification/identificati on specialist posts which are required to be filled up through lateral entry, t he same shall be made rationally, on need basis and strictly as per the provisio n of the Rule 7 (f)(i) of the said Rules which is quoted below: (cid:29)7.(f)(i) In respect of the Specialist posts in Grade-II and/or the posts in Gra de-I, which are to be filled by promotion according to the pre-going provisions, if no officer is eligible on the date when the vacancy occurs and no one will b e eligible for a period of twelve months from such date or if the Selection Comm ittee does not consider any of the eligible officers as suitable, the post may b e filled by deputation for a period not exceeding five years or by direct recrui tment as the Government may determine in consultation which the Commission on ea ch occasion. (cid:29) In the writ petition, apart from the prayer for setting aside and quash 8. ing of the impugned order that was issued in respect of the vacancies intimated above, another prayer made is to consider the prayer of the petitioners for pr omotion to MHS Grade-II against available vacancies in terms of the provision co ntained in Rule 7 (f)(i). During the course of hearing, it was submitted that in the meantime the petitioners have been promoted to MHS Grade-II.

9. The respondents have filed their counter affidavit to which the petition ers have also filed rejoinder affidavit. In the counter affidavit filed by the r espondent Nos. 1 and 2, it has been contended that the issue is no longer resint egra and has been decided by this Court vide judgment and order dated 16.12.2003 passed in W.P.(C) No. 856/2003 (Dr. H. Kumar Singh vs. State of Manipur and ors .). A copy of the said judgment has also been annexed to the counter affidavit a s Annexure-C/1 which has been affirmed in the writ appeal being WA No. 13/2004 ( Annexure-C/2). According to the respondents, the provision of the Rules referred to by 10. the petitioners are not relevant to the case in hand as the recruitment/appointm ent sought to be made by way of direct recruitment is a case of 25% of specialis ed posts resulting in direct recruitment in Grade-I, Grade-II and Grade-III unde r Rule 7(3) (b), 7(3)(c) and 7(3)(d) and not under Rule 7(3)(f)(i) of the Rules. In paragraph-7 of the counter affidavit it has been stated thus: (cid:28)7. That, with reference to para No. 7 of the writ petition, the deponent begs t o state that under rule 4 of the MHS Rules, Manipur health Services have been ca tegorised into five different Grade viz. Special Grade, Grade-I, Grade-II, Grade -III and Grade-IV w.e.f. 12.07.1991 and number of Specialist posts provided for different grades are 7 (Consultant) in Grade-I , 33 (Senor Specialist) in Grade- II and 96 (Specialist) in Grade-III. Under various sub-rules of rule 7 of the MH S Rules, it is provided that 75% of the aforesaid Specialist posts in various gr ades are to be filled up by promotion and the remaining 25% by direct recruitmen t. It is pertinent to mention here that Government of India have launched a National Rural Health Mission (NRHM for short) to address the health needs of r ural population, specially the vulnerable sections of the society. The NRHM is t o focus on 18 States including the State of Manipur where the challenge of stren gthening the weak public health system and improving key health indicator are th e greatest. The objectives of the NRHM amongst others are reduction in infant mo rtality rate and maternal mortality ratio, universalise access to public health service for women’s health, child health, hygiene, nutrition etc. It was conside red by the Government that the immediate requirements of the State specially for successful implementation of the NRHM are Gynaecologist, Paediatricians and Ana esthetists as the said NRHM is aimed for development of mother and child. Thus, by a letter dated 21.07.2005, Director of the Health Services, Manipur, was requ ested to furnish, inter alia, the required number of Specialists in Gynaecology. Paediatrics and Anaesthetists and the present strength. Thereafter, Director of Health Services, Manipur, by a letter dated 23.07.2005, furnished the Governmen t the information sought for and in that it was stated that the required number of Gynaecologist is 38 against the 15 in existence and 29 against the existing 1 4 in respect of paediatrician and 32 against the existing 11 in respect of Anaes thetist. The entire matter was considered by the Government and thereafter State Cabinet took a conscious decision to fill up the various specialist posts which have been advertised vide Anenxure-A/5 to the writ petition as the prioritized disciplines. It is also to state that Specialist posts in various Grades are not created subject-wise/discipline-wise and for direct recruitment, identification /allotment of Specialist posts is first done on the need base/requirement. It is also to state that Rule 7(2) (a) of the MHS Rules provides that appointment/pro motion to other grades other than Special Grades of the service shall be process ed and maintained by the Administrative Department and not by the Department of personnel. (cid:29)

11. Thus in a nutshell, the stand taken by the respondents is that since the posts in question pertain to 25% of the specialist posts reserved for direct re cruitment unconnected with 75% of the specialist posts for promotion, the conten tions raised in the writ petition are not tenable and thus the writ petition is misconceived.

12. In the rejoinder affidavit, while reiterating the stand taken in the co unter affidavit, it has been stated that NRHM being a scheme/project under which no regular employment is contemplated, the stand of the State Government that t he proposed recruitment of MHS Grade (II) officers (Specialists) is to meet the immediate requirement of the State, specially for successful implementation of t he NRHM, is wholly misconceived.

13. I have given my anxious consideration to the submissions made by the lea ned counsel for the parties. I have also perused the entire materials on record. During the course of hearing, Mr. M. Bhuyan, learned counsel representing the p rivate respondent by producing the copy of the order dated 10.11.2006 passed by this Court in Misc. Case No. 322/2006 in reference to W.P.(C) No. 624/2006 (Stat e of Manipur vs. Dr. Karam Lokendra Singh and ors.), submitted that as in Annexu re -C/1 and Annexure-C/2 Judgments referred to above, in the said order also, th e issue has been decided and same cannot be reopened by means of the instant pro ceeding. In the said order responding to the application filed by the State seek ing vacation/modification/ alteration of the interim orders dated 14.07.2006 pas sed by this Court in this proceeding and while vacating the said interim orders, made the following observations: (cid:28)The contentions advanced on behalf of the rival parties have received the due a nd anxious consideration of the Court. At the interim stage, this Court would no t like to record any finding which may have the effect of prejudicing either of the parties at the final hearing. However, there cannot be any manner of doubt t hat it is the Govt. and not the Court who would be the best judge of the questio n as to which of the specialised posts is required to be filled up and precise n umber of posts that should be filed up from a particular discipline. There can a lso be no manner of doubt that if the posts of specialists as advertised remain unfilled for an indefinite duration that these writ petitions may remain pending in spite of best efforts of all concerned, public interest is likely to suffer. The right of the petitioners, if any, which may be established at the final he aring can be easily protected if the appointments pursuant to the advertisement are permitted but same are made subject to the result of the writ petitions. (cid:29)

14. The whole basis of the claim of the petitioners as can be gathered from the arguments advanced at the time of hearing of the writ petitions is that Anne xure-M scheme/project being a time bound programme launched by the Central Govt. , the plea of the State Govt. that the impugned advertisement had to be issued t o meet the immediate requirement of the State specially for successful implement ation of NRHM is wholly misconceived. According to the petitioners, the impugned advertisement would require a meaningful exercise to be carried out to find the Specialist Posts and without carrying out such an exercise, the impugned advert isement ought not have been issued. As noted above, it is the stand of the petit ioners that MHS Rules having not specifically provided for circumstances/criteri a for utilisation of 25% posts by lateral entry, the State Govt. taking advantag e of the lacunae took recourse to fill up the aforementioned posts by the impugn ed advertisement. In Dr. H. Kumar Singh (supra), this Court was concerned with the legalit 15. y and validity of the order dated 15.03.2001 making addition to the list of subj ects and qualifications set out in the Annexure to the Schedule-II of the MHS Ru les, 1982 and the advertisement dated 26.05.2003 issued by the MPSC for direct r ecruitment to the post of Consultant (Neuro Surgery) in MHS. In the said proceed ing, the Court was concerned with appointment of MHS Grade-I. As in the instant case of MHS Grade-II, for MHS Grade-I also, 75% of the posts of Specialists in G rade-I were to be filled up by promotion from Grade-II and the remaining 25% by the direct recruitment. As in the instant case in the said case also, one of the issues was that the impugned advertisement was prompted by extraneous considera tion to benefit a chosen few while depriving the others and that the purported S pecialists posts had been earmarked without any proper verification. Dealing wit h the said issue, the Court made the following observations: (cid:28)31. Having dealt with the first two issues, it is now time to turn to the third issue. A bare look into the Rules proclaim that though it provides for seven po sts of Consultants, those have not been identified specialty wise. The quotas fo r promotion and direct recruitment have been earmarked. It is submitted at the B ar that out of seven posts, one has been earmarked for direct recruitment. So fa r as the posts in the promotion quota are concerned there may not be any necessi ty of identifying the same specialty wise as the in the house candidates, depend ing on the qualifications prescribed, if found fit would be promoted in their t urn. But when it comes to direct recruitment, identification of the discipline o r specialty becomes a necessity. The provision for direct recruitment has been i ncorporated to guarantee induction of best possible merit and, therefore, identi fication of the specialty is a must to streamline the process and have the best possible candidate. The process would otherwise become wayward unwieldy and mean ingless. Identification of specialty, therefore, is essential and has to be need based depending on the demand of the situation. In absence of any provision in the Rules to the contrary it has thus to be left to the Government to assess the ground realities and the prevailing fact situation to identify the discipline o r specialty in which, in public interest such Consultant or a Specialist is nece ssary. In exercise of such discretion if the Government acts on relevant conside rations and initiates a process for direct recruitment against the available quo ta in a particular discipline, the same in my view cannot be dubbed as arbitrary and malafide satisfying interference of this Court. (cid:29)

16. In the instant case, there is no specific allegations against any one of the respondents. Pleadings on record did not lay any factual foundation in conn ection therewith. It has been held in the said decision that Rules do not requir e the Govt. to stick to any particular discipline or specialty in making direct recruitment. If in this premises, the Govt. acting on relevant contemporaneous m aterials decided to make direct recruitment to the Specialist Posts, it cannot b e said to be prompted by extraneous consideration rendering such decision unsust ainable. As has been held in the said decision, if the Govt. is restricted in it s choice to any particular discipline or specialty, it may in a given fact situa tion be totally destructive for which the Rules provide for direct recruitment.

17. With the introduction of the NRHM scheme/project if the Govt. felt the i mmediate requirement of the specialists in the particular disciplines, no fault can be attributed to the said decision. In paragraph-7 of the counter affidavit stages to the decision making process have been exclusively referred to. Paragra ph-7 has been quoted above.

18. Although the petitioners have contended in the writ petitions that the impugned advertisement and the process thereof have intruded upon their chances of promotion, but in absence of any concrete materials, datas and specific ple adings, it is difficult for this court to accept the said contention by making a roving enquiry exercising the power of judicial review under Article 226 of the Constitution of India.

19. For all the aforesaid reasons, I do not find any merit in the writ petit ions and accordingly they are dismissed. However, there shall be no order as cos ts.