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2004 DIGILAW 642 (GAU)

H. Kumar Singh v. State of Manipur

2004-12-21

D.BISWAS, RANJAN GOGOI

body2004
JUDGMENT Ranjan Gogoi, J. 1. Aggrieved by the dismissal of the writ petition filed, the writ Petitioners have instituted the present proceeding in appeal. 2. The facts that will have to be noticed for an effective adjudication of the questions raised may briefly be enumerated herein. The Petitioners are holding the posts of Senior Specialists in Grade-II of the Manipur Health Service. The cadre of Senior Specialist under the Rules in force consists of 33 posts in different disciplines. Under Rule 7 of the Rules, promotional avenue to Grade I of the service has been provided to persons holding the posts of Senior Specialist in Grade II. Out of the total of 14 posts in Grade I, there are 7 posts of Consultant (Specialist). While 75% of the posts of Specialist in Grade-I are required to be filled up by promotion from eligible candidates in Grade II service, 25% of such posts are to be filled up by direct recruitment. Under the provisions of the Rules, for promotion to the post of Specialist in Grade I, only such Officers in Grade-II who possess qualifications appropriate to the posts mentioned in Annexure to the Schedule-II of the Rules would be eligible. According to the Petitioners a post of Specialist/Consultant in Grade-I fell vacant with effect from 06-09-1999. An attempt to allot the said post to the discipline of Neurosurgery and fill up the same by a process of direct recruitment was initiated in the year 2000, which, however, did not materialize on account of objections raised by the Public Service Commission on the ground that in the Annexure to Schedule-II of the Rules, the discipline/subject of Neurosurgery was not included. Thereafter, by a memorandum dated 15-03-2001, Item 2(A) was included in the Annexure to Schedule-II after item 2 and between Item 2 and 3 as already existing. Item 2(A) as included in the Annexure to Schedule-II is in the following terms: 2(A) Neurosurgery-MCh. (Neurosurgery) after obtaining MS Degree. -Or- MCh. Qualification of 5(five) years Continuous course provided there is an evaluation by the University at the end of 3rd year for General Surgery. The Appellants challenged the aforesaid order dated 15-03-2001 making the additions as already noted to the Annexure to Schedule-II on the ground that any such addition could have been made only by way of an amendment of the Rules. The Appellants challenged the aforesaid order dated 15-03-2001 making the additions as already noted to the Annexure to Schedule-II on the ground that any such addition could have been made only by way of an amendment of the Rules. The note (N.B.) appended in the Annexure to Schedule-II of the Rules would empower the competent authority to add or subtract from the qualifications mentioned in Part-A or Part-B but not to add or subtract from the list of subjects/ disciplines, which exercise according to the Appellants can only be done by way of an amendment of the Rules. The subsequent actions of the authority in deciding to fill up the vacant post of Specialist by earmarking the same for the subject of Neurosurgery and on the basis of the provisions of Item 2(A) inserted by order dated 15-03-2001 as well as the consequential advertisement dated 26-03-2003 issued by the Public Service Commission in this regard had also been challenged in the writ petition filed. The challenge having been negated by the Learned Single Judge by the Judgment and Order dated 23-12-2003 on the grounds and reasons assigned, the present appeal has been filed. 3. We have heard Mr. G.N. Sahewalla, learned senior counsel appearing for the Appellants and Mr. D.K. Misra, learned senior counsel appearing for the official Respondents. Mr. N. Koteshwar, learned Counsel appearing for the Respondent No. 5 has also been heard. 4. Mr. Sahewalla, learned senior counsel appearing for the writ Appellants in the course of his long and elaborate argument has submitted that the note appended to the Annexure to Schedule-II of the Rules confers a power on the controlling authority only to vary the qualifications mentioned in Part-A or Part-B to the said Annexure. By the impugned order dated 15-03-2001 what has been done is that the subject/discipline of Neurosurgery has been inserted in the list of subjects/disciplines mentioned in the Annexure and thereafter qualifications have been prescribed in respect of the said post. The exercise attempted, according to Sri Sahewalla, could have been done only by exercising the legislative power by amending the service rules framed under Article 309 . The exercise attempted, according to Sri Sahewalla, could have been done only by exercising the legislative power by amending the service rules framed under Article 309 . It is the argument of the learned Counsel for the Appellant that having regard to the ambit of the power conferred by the note appearing in the Annexure to Schedule-II of the Rules, the controlling authority could not have made any addition to the list of subjects/disciplines as has been purported to be done. On the aforesaid basis it is argued that Item 2(A) as has been sought to be included in the Annexure to Schedule-II of the Rules lacks legal sanctity. The further argument advanced is that the apportionment of the vacant post to the discipline of Neurosurgery and the decision to resort to a process of direct recruitment to fill up the said post is only to favour the Respondent No. 5. Furthermore it is contended that the direct recruitment of the Respondent No. 5 had been resorted to at a time when a ban on such appointment was in force. The actions leading to the eventual appointment of the Respondent No. 5, made during the pendency of the present litigation, are, therefore, contended to be illegal on the aforesaid ground also. 5. The arguments advanced on behalf of the Appellants have been refuted by the equally and elaborate arguments advanced by Sri D.K. Misra, learned senior counsel appearing for the official Respondents as well as by Sri Koteshwar, learned Counsel appearing for the private Respondent No. 5, Sri Misra, learned Counsel for the official Respondents by placing before us the relevant provisions of the Rules as amended from time to time including the various Schedules to the Rules has submitted that the essential qualifications for appointment to the different posts in the various grades in service either by way of direct recruitment or by way of promotion is laid down in Schedule-II of the Rules. For appointment to the post of Specialist/Consultant in Grade-I, possession of qualifications prescribed in Part-A or Part-B of the Annexure to Schedule-II is required and such qualifications must be in the particular speciality in which the vacancy exists. For appointment to the post of Specialist/Consultant in Grade-I, possession of qualifications prescribed in Part-A or Part-B of the Annexure to Schedule-II is required and such qualifications must be in the particular speciality in which the vacancy exists. By referring to the affidavit filed in the case on behalf of the official Respondents and the enclosures thereto, Sri Misra has submitted that even after the impugned office order dated 15-03-2001 adding Neurosurgery to the list of disciplines was issued, similar exercises have been performed and consequential actions of filling up of the posts had been undertaken with a view to providing promotional avenues to persons working as Grade-II Specialists in different disciplines. The power to do so is claimed by the learned Counsel on the basis of the note appended to the Annexure to Schedule-II. It is argued that the Note in question having contained an expressed and unequivocal delegation of power to so act the necessity of an amendment of the Rules is contended to be superfluous. Learned Counsel for the Respondents by referring to the contents of the affidavit filed has also argued that it is in public interest dictated by the need to fill up the post of Consultant in Neurosurgery, that the Government took the decision to allot the available post of Consultant in the direct recruit quota to the discipline of Neurosurgery and further that by a Cabinet decision the ban on direct recruitment in force was relaxed to facilitate the limited exercise of filling up the said post. 6. Having noticed the arguments advanced on behalf of the contesting parties, we may now proceed to appreciate and analyze the same and record our views in the matter. As much would depend on what meaning the Court would ascribe to the note appended to the Annexure to Schedule-II, the said Note may be reproduced herein: N.B. The list is not exhaustive. The controlling authority shall have the power to assign other qualifications to Part-A or Part-B. 7. The note appended to the Annexure to Schedule-II of the Rules, on a plain reading thereof, confers power on the controlling authority to perform certain acts. The controlling authority shall have the power to assign other qualifications to Part-A or Part-B. 7. The note appended to the Annexure to Schedule-II of the Rules, on a plain reading thereof, confers power on the controlling authority to perform certain acts. A power, which would have been normally exercisable by the Rule making authority, appears to have been delegated to the controlling authority and therefore to the extent that powers have been delegated, exercise thereof by the controlling authority would be authorised in law and would obviate the necessity of a legislative exercise by way of an amendment to the Rules. The Note being an integral part of the statutory exercise must be conferred its due status and the exercise of the power delegated must be permitted. The question, therefore, that would really require to be answered is what is the ambit of the power conferred by the note contained in the Annexure to Schedule-II of the Rules. 8. The Note is in two parts. The first part recites that the list mentioned in the Annexure is not exhaustive and the second part confers, on the controlling authority, a power to add or subtract from the qualifications mentioned in Part-A or Part-B. For a proper understanding of the legislative intent both the parts of the note have to be conjointly read. In view of the first part of the Note, the list of disciplines/subjects as mentioned and in respect of which qualifications have been prescribed in Part-A or Part-B must be understood to have been intended by the rule making authority to be not exhaustive. The power to assign qualifications other than those already prescribed, as conferred by the second part, can be meaningfully understood if only a corresponding power to add to the list of subjects/disciplines can be read in the Note. In the absence of any power to add to the list of disciplines/subjects, the power to assign qualifications other than those already prescribed, in a given case, would have little meaning. To understand the Note to be a conferment of power only to assign other qualifications in respect of disciplines/subjects already mentioned would be to ignore the first part of the Note, which recites that, the list is not exhaustive. To understand the Note to be a conferment of power only to assign other qualifications in respect of disciplines/subjects already mentioned would be to ignore the first part of the Note, which recites that, the list is not exhaustive. It is, therefore, our considered view that for the purpose of a meaningful understanding of the note appearing in the Annexure to Schedule-II of the Rules and to give full effect to the legislative intent, a power to add to the list of subjects/disciplines and a corresponding power to amend the qualifications either under Part-A or Part-B must understood to have been delegated on the controlling authority. The inclusion of Item 2(A) in the list mentioned in the Annexure to Schedule-II of the Rules by the office order dated 15-03-2001, therefore, must have our approval. 9. Having answered the first question in the manner indicated, the second issue raised on behalf of the Appellants poses little difficulty. It is the pleaded case of the State that the decision to apportion/allot the post of Consultant available against the quota of direct recruitment to the discipline of Neurosurgery was a conscious decision, which was preceded by an elaborate exercise of determining the necessity thereof. There is hardly any contrary material on record to enable us to hold that the said decision, in any way, has not been dictated by the needs of public interest and public necessity. That apart, the further pleaded case of the State is that to enable the post of Consultant in Neurosurgery to be filled up by direct recruitment, a limited relaxation of the ban on appointment by direct recruitment as in force was granted by the Cabinet. In such a situation, we are unable to appreciate the arguments advanced on behalf of the Appellants that the post in question was earmarked and advertised and subsequently filled up only to favour the Respondent No. 5. For the aforesaid reasons we find no good ground to take a view different from what has been recorded by the Learned Single Judge. Accordingly, we consider it proper to dismiss this appeal but having regard to the facts and circumstances of the case, we make no order as to costs. Appeal dismissed