Judgment · High Court · 2007

ing effect: - (cid:28)Decision for enhancement of age of superannuation of Specialist/Teaching facult y of RIMS vide order dated 28.02.2007 (Annexure A/2 to the writ petition) is all owed to be continued subject to the result of the writ petition. (cid:29)

#05. In WA No.55/2007 preferred by the petitioner against this relaxa tion of the interim clog on the implementation of the impugned decision of enhan cement of age of superannuation, a Division Bench of this Court, vide its order dated 19.07.2007 annulled the order dated 26.04.2007, thus in effect restoring t he state of affairs enjoined by the order dated 27.03.2007, rendered in WA No.18 /2007. Thus, while on one hand, the interim restraint on the operation of the im pugned decision dated 28.02.2007 was maintained, the respondent-Institute was fr ee to lay the issue with regard to the enhancement of the superannuation age bef ore it’s Executive Council for an appropriate decision in conformity with its Co nstitution and Byelaws. The respondent-Institute in deference to the aforesaid order dated 19.07.2007, b y its order No.B/561/2006-RIMS(Pt), dated 26.07.2007 kept in abeyance the initia l order of Director dated 28.02.2007 until further orders. Simultaneously, howev er, it laid the issue before its Executive Council, which in its 35th Meeting he ld on 17.08.2007, against the Item No. 2 resolved to sanction ex-post facto appr oval of the order of enhancement of superannuation age of Specialist doctors of RIMS, Imphal from 60 years to 62 years. It was subsequent thereto that the Direc tor, RIMS issued the order dated 29.08.2007 referring to the above decision of t he Executive Council of RIMS raising the age of superannuation of Specialist/Tea ching Faculty of RIMS from 60 years to 62 years w.e.f. 28.02.2007. The order dat ed 28.02.2007 and 29.08.2007 constitute the subject matter of impeachment in WP( C) No.1762/2011(Ghy)/ 198/2007(Imp). Meanwhile, imputing deliberate and conscious non-compliance of t 06. he interim order dated 19.03.2007, the petitioner instituted Cont. Case(C) No.39 /2007, which was disposed of on 19.04.2007, recording that the order dated 19.03 .2007, though belatedly had been given effect to on 17.04.2007. Alleging that th ough in terms of the order dated 19.03.2007 the services of the respondent No. 4 and another incumbent, who were the beneficiaries of the decision impugned ough t to have been dispensed with, they were allowed to continue as Professor and He ad of Department of Physiology and ENT respectively, the petitioner filed anothe r complaint, which was registered as Cont. Case(C) No.165/2011(Ghy)/ Cont. Case( C) No. 99/2007(IMP).

#07. By order No. M/1/2008-RIMS(38), dated 31.12.2008 of the Director , RIMS, Imphal, thereafter the age of superannuation of the Specialist/Teaching faculty of the Institute was further enhanced from 62 years to 65 years. The pet itioner approached this Court with WP(C) No.29/2009(Imp) for annulling the same as well as the proceedings of the 38th Meeting of the Executive Council purporte dly ratifying that step. This Court, by order dated 19.01.2009 after hearing the parties declined to interfere this precipitating a challenge against the same v ide WA No.184/2011(Ghy).

#08. The respondent-Institute in its pleadings, while admitting that its affairs were administered by the RIMS, Imphal, a registered Society and func tioning under the North Eastern Council, Ministry of Development of North Easter n Region, Government of India, it pleaded all pervasive control of the Governmen t of India and maintained that it was funded almost entirely by these entities. That the RIMS followed on adoption the rules and regulations of the Central Gove rnment for managing its affairs, was also stated. According to it, the Government of India had taken an earlier decision to bring the management and administration of RIMS under it by transferring the Institute to the Ministry of Health and Family Welfare, Government of India on 16.10.2006 in its 53rd Meeting held between 15th - 16th of November, 2006 w.e.f. 01.04.200 7, a decision endorsed by the North Eastern Council. The respondent-Institute ma intained that during this period of transition, the Ministry of Health and Famil y Welfare, Government of India issued an order being No.A12034/3/2005-CHS.V, dat ed 16.11.2006, by which the age of superannuation of Specialist doctors of Centr al Health Services belonging to (i) Teaching, (ii) Non Teaching and (iii) Public Health sub-cadres was enhanced from 60 years to 62 years with immediate effect. Underlining that in view of the adoption of the rules and regulations of the Ce ntral Government, RIMS and impliedly concurred on the norms pertaining to qualif ications and other aspects of eligibility of its doctors qua their counterparts under the Central Health Services, the respondent also referred to the decision of the Managing Committee of the then North Eastern Regional Medical College tak en in its meeting held on 27.08.1985 to the effect that the service conditions o f its permanent employees would be governed in general by the rules and regulati ons of the Government of India, subject to such modifications as would be deemed necessary by the Society. In this regard, the answering respondent also adverte d to the decision of the Executive Council taken on 13.05.1999 to the effect tha t the representation of the academic staff for enhancement of age of superannuat ion from 60 years to 62 years would be taken up for consideration as and when th e Government of India ordered for the implementation of its decision to that eff ect. The respondent-Institute further maintained that as RIMS was als 09. o to cater to the academic needs of the medical students of the seven beneficiar y States of Arunachal Pradesh, Manipur, Meghalaya, Mizoram, Nagaland, Sikkim and Tripura and for which the prescribed ratio of recognized postgraduate teachers to number of students as mandated by the Medical Council of India vide the Post Graduate Medical Education Rules, 2000 was an imperative, adequate faculty in st rength and quality at the appropriate levels was an indispensable essentiality. It referred to the gradual depletion in the cadre of experienced teaching Doctor s and Specialist teaching staff in the higher grade in some of the departments d ue to retirement in particular. That a crisis situation apart from penal fallout s due to consequential violation of the Post Graduate Medical Education Rules, 2 000 framed by the Medical Council of India would arise ensue jeopardizing the ca reer of the postgraduate students already enrolled was duly highlighted.

#10. The respondent-Institute pleaded that in the above circumstances the Director, RIMS proposed the enhancement of the age of superannuation of the Specialist teaching faculty of the RIMS from 60 years to 62 years and steps wer e taken by him to lay the matter before the Executive Council in its 34th Meetin g scheduled to be held on 12.02.2007. This meeting though, postponed, could not be held in time, more particularly, as the then Secretary, North Eastern Council and the Chairman of the Executive Council was to retire on 28.02.2007. Meanwhil e, on the same issue, the Ministry of DONER opined that in view of the imminent transition of control over the affairs of the RIMS to the Ministry of Health and Family Welfare, Government of India, it’s views be also obtained. Situated thus , the Director, RIMS addressed a letter to the Ministry of Health and Family Wel fare, Government of India on 14.02.2007 seeking it’s opinion for enhancement of the age of superannuation of teaching and non-teaching Specialist Doctors of the Institute for the reasons as recited therein. According to the answering respon dent, the acute shortage of the Specialist teaching staff was also highlighted t o be the impelling reason justifying such enhancement. The respondent-Institute stated that in response to this request, the Ministry o f Health and Family Welfare, Government of India by its letter No. F.No. 12012/0 12007-NE, dated 28.02.2007 conveyed its approval for enhancement of age of super annuation from 60 years to 62 years. In its reply, the Ministry of Health and Fa mily Welfare, NE Division, Government of India, while referring to its order dat ed 16.11.2006 enhancing the age of superannuation of officers of Specialist sub- cadre of Central Health Service from 60 to 62 years conveyed that it had no obje ction to the proposal in the similar lines as forwarded on behalf of the RIMS.

#11. In view of the emergent situation confronting the Institute, the Director in exercise of his power under Byelaw No. 6.1.2 and 6.1.3, issued the order dated 28.02.2007, subject to the approval of the appropriate authority. Th e respondents maintained that thereafter the Ministry of DONER by its order No. 4/8/2006-DoNER (NEC-Pt.I), dated 29.03.2007 conveyed the sanction of the competi ng authority for transferring RIMS from NEC to the Ministry of Health and Family Welfare, Government of India w.e.f. 01.04.2007. That immediately thereafter, th e Director, RIMS by its letter dated 04.04.2007 had requested the Secretary, NEC and Chairman Executive Council of the RIMS to hold the 34th meeting of the Exec utive Council to consider, amongst others, the issue of enhancement of the super annuation age of Specialist doctors of the Institute from 60 years to 62 years w as stated.

#12. Reciting the intervening developments occasioned by the orders p assed by this Court as adverted to hereinabove, the respondent-Institute, in par ticular, affirmed that the Executive Council in its 35th Meeting held on 17.08.2 007 did approve the enhancement in the age of superannuation of Specialist/Teach ing faculty of RIMS from 60 years to 62 years w.e.f. 28.02.2007. It stated that this decision of the Executive Council was approved by the Secretary, Health and Family Welfare Department, Government of India, which was communicated to the D irector, RIMS vide letter No.L-12025/21/2007-NE, dated 26.08.2007, whereafter, t he latter issued order dated 29.08.2007 to the same effect. In its supplementary affidavit, the respondent-Institute further clarified that after the draft resolution of the Executive Council adopted in its 35th Meeting held on 17.08.2007 was forwarded to the Ministry of Health & Family Welfare (NE Division, New Delhi) for making a final print out of the proceedings thereof, it was returned vide letter No.U.12025/30/2007-NE, dated 13.11.2007 with the follo wing incorporation in the resolution : - (cid:28)In the matter of the appeal filed by Dr. M. Anita Devi, Prof. of Physiology, RI MS, Imphal, the decision for the retrospective regularization of the Director’s order dated 28.02.2008, should await the decision of the Hon’ble Gauhati High Co urt. (cid:29) to the resolution against agenda Item No. 2.

#13. Noticing that this insertion was not a part of the original reso lution of the Executive Council, the matter was again laid before it (Executive Council) in its 36th Meeting held on 17.01.2008, in which it was resolved as her eunder:- (cid:28)Item No. 1. a) Confirmation of the Proceeding of the 35th Meeting of the Execut ive Council, Society of Rims, Imphal, held on 17th August, 2007: The Proceedings of the 35th Meeting of the Executive Council, Society of RIMS, I mphal was read and confirmed subject to the following modifications: - i) Deletion of the following paragraph appearing last in the resolution under Ag enda Item No. 2 of the 35th Meeting of the Executive Council held on 17.08.2008 as this was not a part of the decision taken in that meeting: (cid:28)In the matter of the appeal filed by Dr. M. Anita Devi, Prof. of Physiology, RI MS, Imphal, the decision for the retrospective regularization of the Director’s order dated 28.02.2007, should await the decision of the Hon’ble Gauhati High C ourt. (cid:29) ii) Deletion of the following paras under Item No. 2 (cid:28)The Executive Council, after deliberation, approved the enhancement of age of s uperannuation of Specialist Doctors/Teaching faculty of RIMS, Imphal from 60 to 62 years w.e.f. 28.02.2007 in terms of the Office Memorandum No. F.No.12012/01/2 007-NE dated 28.02.2007 issued by the Ministry of Health & Family Welfare, Gover nment of India relating to RIMS, Imphal. Further, the Executive Council ratified and approved the order issued by the Dir ector, RIMS, Imphal on 28.02.2007 in terms of the aforesaid letter dated 28.02.2 007 issued by the Ministry of Health & Family Welfare, Government of India. Shri Raghubir Singh, Addl. Secretary & FA, Ministry of Health & Family Welfare w ill examine as to whether this Scheme has been extended to other Medical Institu te under the Ministry of Health & Family Welfare and is to submit a report to th e Chairman, Executive Council within 3 days. (cid:29)

#14. As this resolution, the respondent-Institute has pleaded, did, i n fact, amount to inadvertent and unintended deletion of the resolution of the E xecutive Council as a whole taken in its 35th Meeting of 17.08.2007, the matter was laid again before the Executive Council for necessary rectification. In the 37th Meeting of the Executive Council the error was corrected confirming its ear lier resolution dated 17.08.2007 approving the enhancement of the superannuation age from 60 years to 62 years w.e.f. 28.02.2007.

#15. The respondent No. 1, the then Director, RIMS, Imphal in his aff idavit in Cont. Case (C) No. 99/2007 [Cont. Case (C) No.165/2011 (Ghy)], while r eiterating the facts bearing on the orders passed by this Court in the proceedin gs brought before it on the issue of enhancement of age, denied the accusation o f non-compliance of the order dated 19.03.2007 passed in WP(C) No. 198/2007 and the judgment and order dated 19.07.2007 passed in WA No. 55/2007. He has maintai ned that the follow up steps leading to the resolution of the Executive Council, in endorsement of the enhancement of the superannuation age taken on 17.08.2007 was pursuant to the liberty granted to the respondent-Institute by the order da ted 27.03.2007 of this Court passed in WA No.18/2007. Without prejudice to this stance, the deponent has, in the alternative, expressed unconditional apology, i f any, for non-compliance of the aforementioned orders if construed by this Cour t in the facts and circumstances of the case.

#16. The respondent Nos. 4 & 5 in their individual affidavits have, i n substance, endorsed the averments contained in the pleadings of RIMS and, thus , no dilation of the contents thereof is called for. The reply-affidavit of the petitioner is a receptacle of affirmations and reiterations of the assertions ma de by her in the writ appeal/writ petition and the contempt petition and do not deserve repetition.

#17. Mr. Sahoo has persuasively argued that the order dated 28.02.200 7 of the Director, RIMS, Imphal being without any authority in law in the touchs tone of the relevant provision of the Constitution and Byelaws of the Institute it is non est. Referring to Clause 25 and 31 of the Constitution and Byelaws, th e learned counsel has urged that as prescribed, the age of superannuation of the academic staff of the Institute is 60 years and, thus, no enhancement thereof i s permissible in absence of any appropriate amendment of the Constitution and By elaws, rules and regulations by the Executive Council and, therefore, the unilat eral action on the part of the Director sans adherence to this pre-requisites is void ab initio. According to Mr. Sahoo, no extension in service beyond the pres cribed age even under the FR 56 (d) is allowable in general terms and, thus, in absence of any evaluation of the utility of the private respondents for their re tention in service in public interest after their age of retirement, the impugne d order dated 28.02.2007 of the Director, RIMS, Imphal is patently illegal. As, till that point of time, the decision had not been approved by the Executive Cou ncil, as required under the Constitution and Byelaws of RIMS, the same by no mea ns could have been implemented to the undue benefit of the private respondents, he urged. While contending that the letter dated 28.02.2007 of (cid:28)No Objection (cid:29) of the Ministry of Health & Family Welfare, Government of India to the recommendat ion of the Director, RIMS, Imphal for enhancement of the age of superannuation w as wholly inconsequential as the Institute was decided to be brought under its g overnance only w.e.f. 01.04.2007, the learned counsel insisted that resort to th e power of the Directors, RIMS, Imphal under Clause 6.1.2 of the Constitution an d Byelaws does not, per se, validate the impugned decision. Mr. Sahoo abiding by the pleadings of the petitioner has questioned the authenticity of the proceedi ngs of the Executive Council held on 17.08.2007, and has maintained that the ord er dated 29.08.2007 of the Director, RIMS, Imphal purportedly in compliance ther eof is also ab initio null and void. According to him, as the enhancement of the age of superannuation from 60 to 62 years is unsustainable in law and on facts, the decision to raise it further to 65 years as conveyed by the order dated 31. 12.2008 is obviously void. Mr. Shahoo has sought to reinforce his arguments by r eferring to a host of precedents, including, amongst others, in State of Orissa & Anr. Vs. Mamata Mohanty, (2011) 3 SCC 436, Coal India Limited & Ors. Vs. Anant a Saha & Ors., (2011) 5 SCC 142, Virendra Singh Hooda & Ors. the State of Haryan a & Anr., (2004) 12 SCC 588 and Union of India Vs. Rakesh Kumar (2001) 4 SCC 309 .

#18. We have carefully analysed the pleadings of the parties and the arguments advanced on behalf of the petitioner. That prior to the passing of the order dated 28.02.2007 by the Director, RIMS, Imphal the service conditions of the employees/staff, including the teaching faculty at all relevant times were g overned in general by the rules and regulations of the Government of India, subj ect to the modifications and/or alterations by its Constitution and Byelaws is a matter of record. On being queried by us, Mr. Sahoo, on instructions, has also admitted the applicability of the Fundamental and Subsidiary Rules to them. By t he time, the impugned order dated 28.02.2007 was passed by the Director, RIMS, I mphal, a decision on principle at the appropriate level had been taken to transf er it to the fold of the Ministry of Health & Family Welfare, Government of Indi a w.e.f. 01.04.2007. That by order No.A12034/3/2005 GHS.V, dated 16.11.2006, the Government of India, Ministry of Health & Family Welfare had enhanced the age o f superannuation of Specialist doctors of Central Health Service as referred to thereon from 60 years to 62 years is also an undeniable fact. While the assessme nt made by the Director, RIMS, Imphal with regard to the administrative and acad emic exigencies necessitating sustenance of sufficient teaching faculty is withi n the realm of an expert’s appreciation, to negate which this Court is ill-equip ped, the view of the Ministry of Health and Family Welfare, NE Division, Governm ent of India communicated by its letter dated 28.02.2007 conveying its (cid:28)No Objec tion (cid:29) to the proposal for enhancement of the age of superannuation of the Specia list/Teaching faculty of RIMS from 60 years to 62 years w.e.f. 28.02.2007, in ou r view cannot be discounted in the manner suggested on behalf of the petitioner. True it is that as on that date, the RIMS had not been brought under the direct control of Ministry of Health & Family Welfare, NE Division, New Delhi but thi s, ipso facto, would not, in our opinion, efface the admitted disclosures that t he service conditions of its employees/staff, including the teaching faculty wer e mostly governed by the rules and regulations of the Government of India and th at for posts at par involved in the debate, the age of superannuation had been e nhanced by the same Ministry from 60 to 62 years as far back as on 16.11.2006. I ncidentally, the same Ministry, which was to take over the charge of the affairs of RIMS shortly had also approved the recommendation of its Director for enhanc ement of the superannuation age in similar lines on a due consideration of the n eed thereof in administrative and academic necessity. Clause 25 (1) of the Constitution in clear terms prescribes a ca 19. p of 60 years qua superannuation in case of academic staff of RIMS. The prerogat ive and authority to amend the Byelaws and Rules and Regulations of the Institut e is bestowed in its Executive Council under Clause 31 of the Constitution and B yelaws. The Director, RIMS under Clause 6.1.1 of the Byelaws has been empowered to carry out the work of the Institute in accordance with the Constitution and B yelaws and he is to act under the general direction and control of the Executive Council. Clause 6.1.2 and 6.1.3 endows the Director with the powers necessary f or the exercise of general supervision and control of the work of the Institute and for proper and efficient management thereof. This, however, is subject to th e provisions of the Constitution and Byelaws stipulating otherwise. Clause 6.1.3 . in particular authorizes the Director in an emergency to take any suitable act ion and report to the Chairman and later to the Council.

#20. Read conjointly, Clause 6.1.1, 6.1.2 and 6.1.3, in our estimate, recognizes a residuary power in the Director, RIMS, Imphal in case of an emerge ncy to take any suitable action, however, subject to the final decision of the C hairman and the Executive Council in that regard. In the instant facts and circu mstances therefore, having regard to the reasons cited by the respondent-Institu te in support of the immediate exigency to maintain the existing teaching facult y in academic interest of the students in general, we are not inclined to repudi ate the recommendation of the Director, RIMS for enhancement of the superannuati on age of the Specialist doctors and Teaching faculty/staff from 60 years to 62 years as unauthorized and unwarranted. No overwhelming material is available on record to attribute any bias prejudice or co-lateral consideration to him in esp ousing this step.

#21. Noticeably, this Court by its order dated 27.03.2007 passed in W A No. 18/2007, while maintaining the interim restraint on the implementation of the order dated 28.02.2007 of the Director, RIMS had left the Institute at liber ty to lay this issue before the Executive Council so as to enable it to take an appropriate decision in accordance with the relevant provision of the Constituti on and the Byelaws. Though, reservations have been expressed on behalf of the pe titioner about the genuineness and validity of the resolution dated 17.08.2007 o f the Executive Council taken in its meeting held on 17.08.2007, having regard t o the explanation provided by the Institute in its pleadings in graphic details, we are disinclined to sustain this plea as well. A cumulative reading of the re solutions of the Executive Council taken in its 35th, 36th and 37th Meeting pers uades us to conclude that it (Executive Council) had, without any reservation ap proved the enhancement of the superannuation age of Specialist/Teaching faculty from 60 to 62 years w.e.f. 28.02.2007. On a review of the relevant provisions of the Constitution and the Byelaws as re ferred to hereinabove, we are, thus of the comprehension that the enhancement of the age of superannuation of Specialist/Teaching faculty from 60 years to 62 ye ars has been in accordance therewith. The plea based on FR 65(d) to invalidate t he same also does not appeal to us.

#22. In view of this determination, the challenge to the judgment and order dated 19.01.2009, passed in WP(C) No. 29/2009 also fails. Significantly, in course of the arguments, the only plea taken on behalf of the petitioner was that the order dated 31.12.2008 of the Director, RIMS, Imphal, in enhancing the age of superannuation of the faculty staff of the RIMS, Imphal further from 62 y ears to 65 years is apparently without any legally acceptable basis as the incre ase from 60 years to 62 years is invalid. No other ground of assailment having b een urged before us, this appeal lacks in substance, as the enhancement of the a ge of superannuation from 60 years to 62 years has been upheld as above. While there is no doubt with regard to the legal propositions adumbrated in the decisions cited at the Bar, in our view, in the present conspectus of facts, tho se do not advance the case of the petitioner. On a consideration of the pleadings of the parties bearing on th 23. e allegation of non-compliance of the judgment and order dated 19.07.2007 passed in WA No. 55/2007 and the order dated 19.03.2007 rendered in WP(C) No. 198/2007 , we are of the view that the materials on record do not conclusively establish the imputation. However, in view of the observations made by the learned Single Judge in his order dated 19.04.2007, passed in Cont. Case (C) No. 39/2007 markin g the delay in compliance of the order dated 19.03.2007 and the recorded (cid:28)tenden cy (cid:29) to avoid the implementation thereof, we consider it appropriate to alert the respondents to be scrupulously expeditious in complying with the orders passed by this Court in future. In the singular facts and circumstances of the case, ho wever, we do not propose to proceed with the contempt proceeding. In the result all the proceedings, i.e. W.P.(C) N0.1762/2011 (Ghy)/W.P. (C) N0. 198/2007 (IMP), WA N0. 184/2011 (Ghy)/WA N0. 9/2009 (IMP) and Cont. Case(C) N0. 165/2011 (GHY)/Cont. Case(C) N0.99/2007 (IMP) are hereby dismissed. The parties would bear their own costs.