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2014 DIGILAW 81 (MAN)

Karam Lokendro Singh v. Union of India

2014-07-17

LAXMI KANTA MOHAPATRA

body2014
JUDGMENT Laxmi Kanta Mohapatra; ACJ. 1. The two petitioners in this application pray for quashing the order dated 28.12.2008 in Annexure A/10 wherein private respondents No. 6 and 10 were appointed to the post of M.H.S. Grade-II (Senior Specialist in Gynaecology) in pursuance of the recommendation of DPC held on 21.12.2006 conducted by Manipur Public Service Commission (MPSC) as well as the order dated 12.7.2012 in which all the private respondents were appointed to MHS Grade-I (Consultant) by promotion on recommendation of DPC held on 5.7.2012 with concurrence of MPSC. 2. Since it is the second round of litigation at the instance of the petitioner No. 1, it is necessary to look into the background of the case. When the petitioner No. 1 filed the earlier writ application in 2006, he was working in the cadre of MHS Grade-III. The petitioner No. 2 was also working in the same grade. According to the petitioners, they were eligible for promotion to the next higher grade i.e. M.H.S. Grade-II. An advertisement was issued by MPSC for filling up five posts of MHS-Grade-II (Senior Specialist) i.e. two posts in Gynaecology, two posts in Paediatrics and one post in Anaesthesiology. Challenging the said advertisement, petitioner No. 1 and some other similarly placed doctors filed writ the applications before Gauhati High Court on the ground that cadre strength of MHS Grade-II had been increased to 64 from 48 with corresponding increase of Specialist posts to 33 from 20. The Rules provide for induction of Specialists in MHS Grade-III, Grade-II and Grade-I by lateral entry in the ratio of 25% by way of direct recruitment. However, it is not provided in the Rule as to how and under what circumstances, this 25% specialist posts are to be identified speciality-wise. The further case of the petitioner No. 1 in the earlier writ application was that taking advantage of the lacunae, State Government without verifying and processing the identification of requirements and speciality concerned issued the advertisement inviting applications from eligible candidates for filling up of the aforesaid posts in MHS Grade-II. All the writ applications were disposed of in a common judgment of the Gauhati High Court and the Court having not found any merit in the writ applications, dismissed the same. 3. All the writ applications were disposed of in a common judgment of the Gauhati High Court and the Court having not found any merit in the writ applications, dismissed the same. 3. The private respondents No. 6 and 10 who were working in MHS Grade-III in pursuance of the said advertisement issued by MPSC submitted their respective applications and were ultimately recommended for appointment to MHS Grade-II. Consequently, under Annexure A/10 by order dated 20th December, 2006 both of them were appointed to MHS Grade-II as direct recruits. Subsequently, by another order dated 12th July, 2012, all the private respondents No. 6 to 10 were promoted to MHS Grade-I (Consultant) on recommendation of the DPC with concurrence of MPSC. Challenging the appointment of respondents No. 6 and 10 to MHS Grade-II in Annexure A/10 as well as promotion to all the private respondents to MHS Grade-I under A/13, this writ application has been filed. The case of the petitioners in this writ application is that they are senior to the private respondents and while working in MHS Grade-III, they became due for promotion to MHS Grade-II. As per the Rules, 75% of the vacancies available in MHS Grade-II are to be filled up by way of promotion and rest 25% posts are to be filled up by way of direct recruitment. When the matter stood thus, an advertisement was issued by MPSC on 4th May, 2006 inviting applications for filling up of two posts of MHS Grade-II (Senior Specialist in Gynaecology), two posts of MHS Grade-II (Senior Specialist in Paediatrics) and one post of MHS Grade-II (Senior Specialist in Anaesthesiology). The choice of the above three disciplines was for the purpose of implementation of NRHM Scheme/Project floated by Govt. of India. The further case of the petitioners is that though special recruitments were made for the purpose of implementation of NRHM, selected private respondents 6 & 10 were never asked to work for NRHM and they were taken into Grade-II cadre of MHS as regular recruits. According to the petitioners, in Grade-III, these two respondents No. 6 and 10 were much junior to the petitioners and in normal course, respondent No. 6 and 10 could not have got promotion by-passing the petitioners to MHS Grade-II. According to the petitioners, in Grade-III, these two respondents No. 6 and 10 were much junior to the petitioners and in normal course, respondent No. 6 and 10 could not have got promotion by-passing the petitioners to MHS Grade-II. By this indirect method, they have been directly recruited to MHS-II whereas, State Government did not open any promotional avenue for the petitioners who had to work in Grade-III for a considerable length of time before they were promoted to MHS Grade-II. The sole ground taken by the petitioners in this writ application is that the private respondents No. 6 and 10 had been recruited to MHS Grade-II for the purpose of implementation of NRHM but they were never directed to work in NRHM and were included in the cadre of MHS Grade-II, as a result of which, they became senior to the Petitioners in MHS Grade-II whereas, they were much junior to the petitioner in MHS Grade-III. Therefore, the prospect of promotion of the petitioners to MHS Grade-I has got badly affected. 4. Counters have been filed by the State respondents as well as by private respondents. The stand of the State respondents is that for implementation of NRHM, a decision was taken to recruit more number of doctors in the above three disciplines as it was not possible on the part of the State to manage the hospitals as well as implementation of NRHM scheme with few number of doctors in the above three disciplines. It is also the stand of the state respondents that the officers borne in MHS Grade-I, II and III, not only look after their own routine work but also work for implementation of the NRHM Scheme. Because of the above decision taken by the Govt., neither regular work in the hospitals is affected nor is there any difficulty in implementation of the NRHM scheme. 5. Private respondents have also taken, more or less, similar stand. A technical objection has been raised with regard to the maintainability of the writ application at the instance of the petitioner No. 1. According to the learned A.G. appearing for the State Respondents, and other learned Sr. 5. Private respondents have also taken, more or less, similar stand. A technical objection has been raised with regard to the maintainability of the writ application at the instance of the petitioner No. 1. According to the learned A.G. appearing for the State Respondents, and other learned Sr. counsel appearing for the private respondents, the advertisement by virtue of which, respondents No. 6 and 10 were appointed to MHS Grade-II as well as their appointment to MHS Grade-II had been challenged by the petitioner No. 1 in the earlier writ application and the said writ application was dismissed on merit. Therefore, so far as the petitioner No. 1 is concerned, the present application is hit by res judicata. So far as the petitioner No. 2 is concerned, his case is covered by earlier judgment of the Gauhati High Court in which petitioner No. 1 was a party and therefore, present writ application is liable to be dismissed. 6. Shri M. Rarry, learned counsel appearing for the petitioners submitted that the private respondents were initially appointed to MHS Grade-III and had been placed below the petitioners. In ordinary course, they would have got promotion to MHS Grade-II only after promotion of the petitioners. Because of the NRHM Scheme floated by the Central Government there was requirement of doctors in certain disciplines and taking advantage of the same, the private respondents applied for the post since they were working in the same discipline and got selected for appointment to MHS Grade-II, whereas, the petitioners remained in MHS Grade-III. The petitioners had no scope to apply for appointment directly to MHS Grade-II as no post in their respective disciplines had been advertised. It was further submitted by learned counsel that if the private respondents were appointed to MHS Grade-II for implementation of scheme, they should have been appointed under the scheme and not under the State Health Services. If the private respondents would have been appointed under the scheme for which they were selected, the petitioners would not have any grievance at all as those private respondents could not be senior to petitioners in the State Health Services. Mr. Th. Ibohal, learned A.G. appearing for the state respondents as well as Mr. N. Ibotombi, learned sr. If the private respondents would have been appointed under the scheme for which they were selected, the petitioners would not have any grievance at all as those private respondents could not be senior to petitioners in the State Health Services. Mr. Th. Ibohal, learned A.G. appearing for the state respondents as well as Mr. N. Ibotombi, learned sr. counsel appearing for the private respondents resisted the prayer in the writ application on the ground that selection and appointment of the private respondents had earlier been challenged by the petitioner No. 1 and writ application had been dismissed on merit. Therefore, it was no more open for the petitioner No. 1 to question the illegality of appointment of the private respondents in Grade-II service of the State Health Services. So far as the petitioner No. 2 is concerned, the case is directly covered by the earlier judgment and therefore, the present writ application is not only hit by the principles of res judicata but also has, otherwise, no merit, as the dispute has been decided earlier in a writ application. 7. National Rural Health Mission (NRHM) was launched on 12th April, 2005 for a period of seven years. It is an Omnibus broadband programme. The emphasis under NRHM scheme is to improve primary health care, decentralisation, intra and inter-sectoral convergence and community ownership. The Government funded Rs. 6,731.16 crore for implementation of the said scheme for the year 2005-2006. Rules and Regulations to be adopted by the States for implementation of the scheme also provide for recruitment and appointment. The relevant provision is quoted below:- C. Human Resources Policy and Procedures:- Recruitment and Appointment: Appointments for the Society can be made only against vacant posts prescribed for the Society in accordance with the conditions in this regard prescribed by the Govt. of India from time to time (such as the overall programme management costs not to exceed 6% of the total programme costs). Recruitment would be through either of the following three routes: • Appointments from open market; all such appointments will be on contractual basis for a fixed tenure. • Appointments on "Deputy" basis : all such appointments will be regulated in terms of the State Government rules relating to Deputation of its officers/staff. Recruitment would be through either of the following three routes: • Appointments from open market; all such appointments will be on contractual basis for a fixed tenure. • Appointments on "Deputy" basis : all such appointments will be regulated in terms of the State Government rules relating to Deputation of its officers/staff. • Individuals recruited and paid for by an outside agency (e.g. Government of India and/or Development Partners) but posted to work within the society Secretariat: all such persons shall be governed by the terms of employment of the organisation agency concerned. However, they shall be required to report to the Director/Executive Secretary as may be decided by the Chairperson, Executive Committee. All appointments would be temporary and would be made for the contract/deputation period as determined by the Executive Committee. 8. As is evident from the above provision contained in the Regulation to be adopted by the States for implementation of the scheme, appointments are to be made from the open market and all such appointment will be on contractual basis for a fixed tenure. In the alternative, appointment can also be made on deputation basis. Another alternative is also provided under which individuals recruited and paid for by an outside agency such as Government of India and/or Development Partners but posted to work within the Society Secretariat. All such persons shall be governed by the terms of employment of the organisation/agency concerned. However, they shall be required to report Director/Executive Secretary as may be decided by the Chairperson, Executing Committee. The said Rules also provide for procedure for recruitment and appointment of contractual staff. Therefore, the scheme envisages, appointment to be made from the open market on contractual basis or by way of deputation. The third mode of recruitment is not relevant for the purpose of this case. Admittedly, from the counter affidavit, it appears that one doctor has been appointed in the discipline of Gynaecology on contractual basis after retirement but rest of the doctors who are said to be working for implementation of the scheme are doing so in addition to their normal duties as MHS Grade-I, II and III in Manipur Health Service. 9. The advertisement issued by MPSC inviting applications for direct recruitment to MHS Grade-II in the above three disciplines was challenged by petitioner No. 1 and some others in a batch of writ applications before the Gauhati High Court. 9. The advertisement issued by MPSC inviting applications for direct recruitment to MHS Grade-II in the above three disciplines was challenged by petitioner No. 1 and some others in a batch of writ applications before the Gauhati High Court. All the writ applications were dismissed by a common judgment. The relevant paragraph of the judgment are quoted below:- 13. I have given my anxious consideration to the submissions made by the learned 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 private 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 of 2006 (State of Manipur Vs. Dr. Karam Lokendra Singh and ors.), submitted that as in Annexure C/1 and Annexure C/2 Judgments referred to above, in the said order also, the issue proceeding. In the said order responding to the application filed by the 14.07.2006 passed by this Court in this proceeding and while vacating the said interim orders, made the following observations: The contentions advanced on behalf of the rival parties have received the due and anxious consideration of the Court. At the interim stage, this Court would not 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 that it is the Govt. and not the Court who would be the best judge of the question as to which of the specialised posts is required to be filled up and precise number of posts that should be filled up from a particular discipline. There can also 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 hearing can be easily protected if the appointment pursuant to the advertisement are permitted but same are made subject to the result of the writ petitions. 14. The right of the petitioners, if any, which may be established at the final hearing can be easily protected if the appointment pursuant to the advertisement are permitted but same are made subject to the result of the writ petitions. 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 Annexure-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 to meet the immediate requirement of the State specially for successful implementation 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 advertisement ought not to have been issued. As noted above, it is the stand of the petitioners that MHS Rules having not specifically provided for circumstances/criteria for utilisation of 25% posts by lateral entry, the State Govt. taking advantage of the lacunae took recourse to fill up the aforementioned posts by the impugned advertisement. 15. In Dr. H. Kumar Singh (supra), this Court was concerned with the legality and validity of the order dated 15.03.2001 making addition to the list of subjects and qualifications set out in the Annexure to the Schedule-II of the MHS Rules, 1982 and the advertisement dated 26.05.2003 issued by the MPSC for direct recruitment to the post of Consultant (Neuro Surgery) in MHS. In the said proceeding, 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 Grade-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 consideration to benefit a chosen few while depriving the others and that the purported Specialists posts had been earmarked without any proper verification. Dealing with the said issue, the Court made the following observations: "31. Having dealt with the first two issues, it is now time to turn to the third issue. Dealing with the said issue, the Court made the following observations: "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 posts of Consultants, those have not been identified speciality wise. The quotas for promotion and direct recruitment have been earmarked. It is submitted at Bar that out of seven posts, one has been earmarked for direct recruitment. So far as the posts in the promotion quota are concerned there may not be any necessity of identifying the same speciality wise as the in the house candidates, depending on the qualifications prescribed, if found fit would be promoted in their turn. But when it comes to direct recruitment, identification of the discipline or speciality becomes a necessity. The provision for direct recruitment has been incorporated to guarantee induction of best possible merit and, therefore, identification of the speciality is a must to streamline the process and have the best possible candidate. The process would otherwise become wayward unwieldy and meaningless. Identification of speciality, 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 or speciality in which, in public interest such consultant or a speciality is necessary. In exercise of such discretion if the Government acts on relevant considerations and initiates a process for direct recruitment against the available quota in a particular discipline, the same in my view cannot be dubbed as arbitrary and mala fide satisfying interference of this Court. 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 connection therewith. It has been held in the said decision that Rules do not require to Govt. to stick to any particular discipline or speciality in making direct recruitment. If in this premises, the Govt. acting on relevant contemporaneous materials decided to make direct recruitment to the Specialist Posts, it cannot be said to be prompted by extraneous consideration rendering such decision unsustainable. As has been held in the said decision, if the Govt. to stick to any particular discipline or speciality in making direct recruitment. If in this premises, the Govt. acting on relevant contemporaneous materials decided to make direct recruitment to the Specialist Posts, it cannot be said to be prompted by extraneous consideration rendering such decision unsustainable. As has been held in the said decision, if the Govt. is restricted in its choice to any particular discipline or speciality, it may in a given fact situation 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 immediate 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 Paragraph-7 has been quoted above. 10. In view of the above judgment, it is no more open for the petitioner No. 1 to challenge selection of the private respondents to Grade-II service of the State Health Services any more. The points raised by the learned counsel, Mr. M. Rarry in this regard have already been answered in the said judgment and therefore, so far as Petitioner No. 1 is concerned, those issues cannot be raised again. So far as the petitioner No. 2 is concerned, the same issues having been raised in this writ application and those issues having been decided in the earlier judgment as quoted above, I find no reason to defer with the earlier judgment. 11. Out of 6 prayers made in the writ application, (a) to (d) have already been decided in the earlier judgment and therefore, no more open to be discussed and decided. So far as the prayer No. (e) and (f) are concerned, it was contended by learned counsel appearing for the petitioners, Mr. M. Rarry that private respondents having been appointed to work under the scheme, their service should be utilised under the scheme and not under the State Health Services. In order to implement the NRHM scheme, it was necessary to have doctors in MHS Grade-II (Senior Specialist) in 3(three) disciplines such as Gynaecology, Paediatrics and Anaesthesiology. Considering the need for implementation of the scheme, the state found that in the above 3(three) disciplines, sufficient number of doctors were not available for being deputed to work under the scheme. In order to implement the NRHM scheme, it was necessary to have doctors in MHS Grade-II (Senior Specialist) in 3(three) disciplines such as Gynaecology, Paediatrics and Anaesthesiology. Considering the need for implementation of the scheme, the state found that in the above 3(three) disciplines, sufficient number of doctors were not available for being deputed to work under the scheme. Accordingly, an advertisement was issued by MPSC for filling up five posts in MHS Grade-II (Senior Specialist) i.e. two posts in Gynaecology, two posts in Paediatrics and one post in Anaesthesiology. Private respondents were eligible to apply, they were considered and were selected for appointment to the said post though the private respondents were junior to the petitioners in Grade-III. Because of the above developments and introduction of the scheme, it became necessary to appoint more number of doctors in Grade-II Services in the above three disciplines for effective implementation of the scheme. Unfortunately, neither of the petitioners belonged to any one of the above three disciplines and naturally could not apply for appointment. The private respondents who belonged to above disciplines and were working in MHS Grade III applied for the posts and were selected. The issuance of advertisement, selection of the private respondents for appointment to MHS Grade-II were the subject matter of challenge in the earlier writ application and the Court did not find any merit in the case of the petitioner No. 1 filed earlier alongwith some other doctors. Therefore, the question with regard to legality of issuance of advertisement, selection of the private respondents to MHS Grade-II in the above three disciplines and their appointment to the said Grade cannot be questioned any further. In the present writ petition, Mr. M. Rarry, learned counsel appearing for the petitioners had cited some decisions in support of his contention that the earlier judgment did not take into consideration the issue that the private respondents were selected for appointment to MHS Grade-II to serve under the scheme and not to work in the State Health Services. Therefore, the earlier judgment could not be a complete bar in consideration of the prayer of the petitioner for appointing the private respondents in MHS Grade-II under the scheme for which advertisement had been issued and selection had been made. Therefore, the earlier judgment could not be a complete bar in consideration of the prayer of the petitioner for appointing the private respondents in MHS Grade-II under the scheme for which advertisement had been issued and selection had been made. Reliance was placed on a decision of the Apex Court in Union of India & ors Vs Dhanwanti Devi and ors reported in (1996) 6 SCC 44 in para No. 10 of the above decision, it was observed that in order to understand and appreciate the binding force of a decision, it is always necessary to see what were the facts in the case in which the decision was given and what was the point which had to be decided. No judgment can be read as if it is a statute. A word or a clause or a sentence in the judgment cannot be regarded as full exposition of law. Law cannot afford to be static and therefore, judges are to employ an intelligent technique in the use of the precedents. Reliance was also placed on a decision of the Apex Court in Islamic Academy of Education and anr-Vs-State of Karnataka and ors reported in (2003) 6 SCC 697 . On perusal of the relevant paragraph relied upon by the learned counsel for the petitioners, I do not find anything that may support the petitioners' case. In the case of Commissioner, Karnataka Housing Board-vs-C. Muddaiah reported in (2007) 7 SCC 689 relied upon by the learned counsel appearing for the petitioner, it was observed that while granting a relief in favour of the parties, Court must see relevant provision of law and issue appropriate direction keeping in view such provisions. However, depending on the facts and circumstances, Court may issue necessary direction in the larger interest of justice keeping in view the principles of justice, equity and good conscience. The decision rendered by the Apex Court in the case of Bhupendra Nath Hazarika and anr. vs. State of Assam and ors reported in (2013) 2 SCC 516 relied upon by the learned counsel for the petitioners is not applicable to the facts of the present case. It was a case where special drive was made for recruitment which was totally de hors the rules and when there was no need for the same. vs. State of Assam and ors reported in (2013) 2 SCC 516 relied upon by the learned counsel for the petitioners is not applicable to the facts of the present case. It was a case where special drive was made for recruitment which was totally de hors the rules and when there was no need for the same. The other decisions cited by the learned counsel appearing on behalf of the petitioners, more or less, relate to the question as to whether the earlier judgment of this Court has put an end to the controversy or not. On reading para No. 13 to 17 of the earlier judgment quoted in para 9, it would appear that of the above issues raised by the learned counsel for the petitioners had been taken note and answered in the said judgment. Therefore, I am of the view that legality of the advertisement issued by the State for appointment to Grade-II in the service of the above three disciplines, selection of the private respondents and their appointment to State Services in MHS Grade-II cannot be challenged any further and the said controversy having already been decided, even at the instance of the petitioner No. 2, I do not find any reason to defer with the earlier judgment. 12. Only other question is as to whether the private respondents should have been directed to work under the scheme or not. Private respondents having been appointed to the MHS Grade-II, it was open for the State to depute any doctor in the above three disciplines to work under the scheme. In course of argument, the Court, therefore, made a query as to whether required number of doctors have been provided by the State Government from the State Health Services to work under the scheme or not. Detailed affidavit has been filed which indicates that doctors have been provided though not exclusively to work under the scheme. There is no complaint that the work under the scheme has been affected by not deputing doctors specifically for implementation of the scheme. Under these circumstances, I also do not find any reason to direct the Government to depute the private respondents to work under NRHM when the State Government has already deployed certain numbers of doctors for effective implementation of the scheme. 13. Under these circumstances, I also do not find any reason to direct the Government to depute the private respondents to work under NRHM when the State Government has already deployed certain numbers of doctors for effective implementation of the scheme. 13. For the reasons stated above, I find no merit in the writ application and accordingly dismiss the same.