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2015 DIGILAW 107 (MAN)

K. Shyam v. State of Manipur and Ors.

2015-08-18

KH.NOBIN SINGH

body2015
JUDGMENT 1. Heard Shri R.K. Manikanta, learned counsel appearing for the petitioner; Shri K. Jagat, learned Govt. Advocate appearing for the respondent No. 1 and Shri A. Bimol, learned counsel appearing for the respondent No. 2. 2. The present writ petition has been filed by the petitioner praying for withdrawal and cancellation of the impugned orders dated 10-01-2012, 12-01-2012 and 21-01-2012 and also for regularising/absorbing the petitioner as Assistant Professor at JNIMS. 2.1. According to the petitioner, he was at the relevant time serving as Medical Officer (M.O) in the erstwhile Jawaharlal Nehru Hospital, Government of Manipur which came to be sought to be converted into a technical hospital under the control of the Jawaharlal Nehru Institute of Medical Sciences (hereafter referred to as JNIMS), a registered society and accordingly, the Commissioner (Health & F.W.), Government of Manipur issued an order dated 02-05-2009 by which the erstwhile J.N Hospital and its staff was placed under the Academic, Administrative and Disciplinary Control of the Director, JNIMS subject to the terms and conditions mentioned therein. While the petitioner was working under the said placement, the Commissioner (Health & F.W), Government of Manipur issued another order dated 10-01-2012 by which the petitioner was repatriated from the JNIMS and was posted at the District Hospital, Churachandpur with immediate effect and until further order. In line with the said order dated 10-01-2012, the Director of Health Services, Manipur issued a memorandum dated 12-01-2012 informing the petitioner that he should comply with the said order dated 10-01-2012 issued by the Commissioner (Health & F.W) and join immediately the new place of posting failing which action would be initiated against him. After the petitioner having been repatriated, the Director, JNIMS issued a memorandum dated 21-01-2012 ordering that payment of salary of the petitioner from JNIMS fund be stopped w.e.f. 13-01-2012. 2.2. It is vehemently submitted by the learned counsel appearing for the petitioner that from the day the said order dated 02-05-2009 was issued by the State Government, the petitioner became an employee of the JNIMS and therefore, the State Government had no power and authority to issue the impugned orders dated 10-01-2012 and 12-01-2012 and it was only the JNIMS which could have issued any order as regards the service conditions of the petitioner. It is also the contention of the learned counsel for the petitioner that since the said order dated 10-01-2012 had been stayed vide order dated 24-04-2014 passed by this court, the petitioner continued to be the employee of the JNIMS. In order to substantiate his contention, the learned counsel appearing for the petitioner has relied upon the various decisions rendered by the Hon'ble Supreme Court in about 18 cases namely AIR 1993 SC 2592 ; (1994) 1 SCC 431 ; (1996) 4 SCC 590 ; (2006) 8 SCC 129 ; AIR 1977 SC 747 ; 1994 Suppl. (3) SCC 471; (1999) 8 SCC 99 ; AIR 1977 SC 629 ; AIR 1994 SC 745 ; (1997) 8 SCC 372 ; (1999) 4 SCC 659 ; (2007) 10 SCC 684 ; (1997) 6 SCC 169 ; (2008) 3 SCC 222 ; AIR 1982 SC 101 ; (1997) 10 SCC 627 ; AIR 1988 SC 876 & (2001) 9 SCC 54 . 3. The writ petition is contested by the State of Manipur by filing an affidavit-in-opposition stating therein that as a policy decision, the J.N. Hospital was transferred to JNIMS subject to the conditions mentioned in the order dated 16-01-2010. The transfer being for three years, the incumbent doctors were required to exercise options either to join JNIMS or to return to Health Department, Government of Manipur and if any doctor wished to join JNIMS, he was required to apply based on qualification and experience as per relevant recruitment rules and the selection was to be made on the recommendation of a duly constituted DPC and appointment order was to be issued accordingly. Since no order appointing the petitioner for any post at JNIMS was issued by it and in view of the exigency of service of a Radiologist at District Hospital, Churachandpur, the petitioner was repatriated from JNIMS and was posted at District Hospital, Churachandpur vide impugned order dated 10-01-2012 issued by the State Government. Having failed to comply with the said order dated 10-01-2012, the petitioner was placed under suspension vide order dated 17-01-2012 and the disciplinary proceeding initiated against him is still pending. Having failed to comply with the said order dated 10-01-2012, the petitioner was placed under suspension vide order dated 17-01-2012 and the disciplinary proceeding initiated against him is still pending. In line with the State of Manipur, the JNIMS, the respondent No. 2 also filed its counter affidavit stating therein that pursuant to the transfer of the J.N. Hospital to JNIMS vide order dated 16-01-2010 subject to the conditions mentioned therein, the State Government issued a Memo dated 10-03-2010 informing the doctors and staff to exercise their options in the prescribed forms, failing which it would be assumed that they had opted to return to the Health Department, Government of Manipur. Since the petitioner did not exercise his option to join JNIMS, it was assumed that the petitioner had opted to return to the Health Department and was treated as a member of the Manipur Health Services. Moreover, in view of the exigency of service of a Radiologist at District Hospital, Churachandpur, the petitioner was repatriated from JNIMS and was posted at District Hospital, Churachandpur vide impugned order dated 10-01-2012. It is also submitted by the learned counsel appearing for the respondent No. 2 that since the petitioner was not eligible for appointment as Assistant Professor in JNIMS as per relevant recruitment rules, he had no right to claim for appointment/absorption as Assistant Professor at JNIMS without following any process of selection. It is further submitted that the writ petition is misconceived and deserves to be dismissed. 4. The subject matter in issue relates to the interpretation of the provisions of the order dated 02-05-2009 issued by the State of Manipur and therefore, a full text of the said order dated 02-05-2009 is reproduced herein below: "Government of Manipur Secretariat : Health Department ---- ORDERS BY THE GOVERNOR: MANIPUR Imphal, the 2nd May, 2009 No. 12/3/2007-M(Pt-1) In order to fulfil the Minimum requirements prescribed by the Medical Council of India for establishment of Jawaharlal Nehru Institute of Medical Science (JNIMS) at Porompat, Imphal East, the Governor of Manipur is pleased to order placement of the existing Jawaharlal Nehru Hospital (JNH), Porompat, Imphal East and its staff under the Academic, Administrative and Disciplinary Control of the Director, JNIMS, Imphal under the following terms and conditions with immediate effect in public interest. 1. All staff of J.N. Hospital shall be under the control of Director, JNIMS, Imphal. 2. 1. All staff of J.N. Hospital shall be under the control of Director, JNIMS, Imphal. 2. Medical Superintendent, J.N. Hospital, Imphal shall continue to be the DDO & HOO for J.N. Hospital under the control of Director, JNIMS, Imphal. 3. Director, JNIMS, Imphal is designated as Controlling Officer of Medical Superintendent, J.N. Hospital as well as Reporting Officer for writing of ACR of the later. 4. Leave applications for Class I and Class II Officers/employees shall be forwarded to the Government through Director, JNIMS under intimation to Director of Health Services, Manipur. 5. Director, JNIMS shall be the Authority for grant/sanction of leave in respect of Class III and IV staff of J.N. Hospital. Leave Applications shall be processed by the Medical Superintendent, being custodian of service books/service records of J.N. Hospital staff, and he will submit such leave applications to Director, JNIMS. Relevant copies of Leave Sanction Orders shall be sent to Director of Health Services, Manipur. Leave Accounts/Records for those employees at J.N. Hospital available in the Directorate of Medical/Health Services, Manipur shall be transferred to the officer of Director, JNIMS. 6. Director, JNIMS and the Medical Superintendent, J.N. Hospital, Imphal shall prepare a draft Organizational Chart covering both the existing staff of J.N. Hospital and the College Faculty in order to facilitate smooth integration. 2. It is further ordered that Transfer and Posting from and to J.N. Hospital, Imphal shall continue to vest with the Transfer and Posting Committee chaired by Hon'ble Minister (Health & F.W.), Manipur. Director, JNIMS may be invited to the said Committee whenever matters relating to J.N. Hospital, Imphal are being discussed. 3. Major office works and procurements from Government budget shall continue to be processed by Director of Health Services, as per existing rules. However, for those relating to J.N. Hospital & JNIMS, it shall be based on proposals submitted by Director (JNIMS). In cases initiated by the Directorate, it shall be done in consultation with Director (JNIMS). 4. The requirement of administrative staff for JNIMS shall be met by deputation of staff from Health Department and other government departments as a first step. Director (JNIMS) is authorized to identify suitable staff in consultation with the concerned Head of Departments and issue a request to the Department concerned. To meet the MCI deadline, departments should depute the identified staff promptly. This issues with the approval of State Cabinet on 29-04-2009. Director (JNIMS) is authorized to identify suitable staff in consultation with the concerned Head of Departments and issue a request to the Department concerned. To meet the MCI deadline, departments should depute the identified staff promptly. This issues with the approval of State Cabinet on 29-04-2009. By Orders & in the name of Governor, (V. Vumlunmang) Commissioner (Health & FW), Government of Manipur." 5. It is not in dispute that the petitioner was a Medical Officer at the J.N Hospital, Government of Manipur which was intended to be transferred to the JNIMS, a registered Society vide order dated 02-05-2009 issued by the Commissioner (Health & F.W), Government of Manipur directing that the J.N Hospital and its staff be placed under the Academic, Administrative and Disciplinary Control of the Director, JNIMS subject to the terms and conditions mentioned therein. The counsel appearing for the petitioner has submitted that by the said order dated 02-05-2009 issued by the State Government, the petitioner had been absorbed/appointed as an employee of the JNIMS and therefore, the State of Manipur had no power and authority to issue the impugned orders dated 10-01-2012 and 12-01-2012 and since the impugned order dated 10-01-2012 and 12-01-2012 being issued without any authority, they were illegal and consequently, the impugned dated 21-01-2012 issued by the JNIMS also became illegal. 6. From perusal of the said order dated 02-05-2009, it is indubitably clear that the said order was one by which J.N Hospital, Porompat, Imphal East and its staff were placed under the Academic, Administrative and Disciplinary Control of the Director, JNIMS, Imphal under the terms and conditions mentioned therein. In other words, it was a temporary arrangement and was the first major step taken by the State of Manipur towards the implementation of its policy decision for the establishment of JNIMS and it had nothing to do with the service conditions of the staff of JNIMS. The provisions of the said order dated 02-05-2009 are unambiguous and require no interpretation at all. The learned counsel appearing for the petitioner has lost sight of this fact and the subsequent steps being taken by the State Government towards the establishment of JNIMS by way of issuing orders/OMs. In this regard, the contentions of the learned counsels appearing for the respondents have substance and are sustainable. The learned counsel appearing for the petitioner has lost sight of this fact and the subsequent steps being taken by the State Government towards the establishment of JNIMS by way of issuing orders/OMs. In this regard, the contentions of the learned counsels appearing for the respondents have substance and are sustainable. It is the order dated 16-01-2010, issued by the State Government, by which the J.N Hospital was really transferred to JNIMS with immediate effect and subject to the conditions mentioned therein, one of which being that the period of transfer should be for three years during which the Manipur Health Service Doctors posted as ex-cadre in JNIMS be given the options for repatriation. Immediately thereafter, the rules called "the Jawaharlal Nehru Institute of Medical Sciences (Teaching Staff) Recruitment Rules, 2010" came to be framed and notified on 23-01-2010. As per the Recruitment Rules for the post of Assistant Professor, the method of recruitment was by direct recruitment and the upper age limit was 45 years. As the next step towards completion of transfer, the State of Manipur issued a Memorandum dated 10-03-2010, by which all doctors and staff were informed that they should exercise their options as per the prescribed forms, failing which it would be assumed that they had opted to return to Health Department. Admittedly, the petitioner did not exercise his option and one reason as to why he did not exercise his option, could be that he was not eligible for appointment as Assistant Professor in JNIMS as per the relevant recruitment rules, the consequence thereof was that he was deemed to have opted to return to the Health Department and to have continued to be the member of the Manipur Health Service. Therefore, it was well within the power and authority of the State of Manipur to issue the said impugned orders. 7. Despite knowing fully the various steps taken by the State of Manipur, by issuing appropriate orders/OMs, towards the establishment of JNIMS, the petitioner unfortunately stuck to his stand that pursuant to the order dated 02-05-2009, he had become employees of the JNIMS. It is the basic principles in service law that to be an employee of the JNIMS, an appointment order in respect thereof is a must, which the petitioner was unable to produce before this court. It is the basic principles in service law that to be an employee of the JNIMS, an appointment order in respect thereof is a must, which the petitioner was unable to produce before this court. It appears that the petitioner has not been properly advised in this regard and instead of depending upon the outcome of the present case, the petitioner could have followed the orders/OMs issued by the State of Manipur from time to time which he failed to do that and moreover, in case he was aggrieved by any order/OM of the State of Manipur, he could have challenged it before the appropriate forum. Out of the 18 decisions relied upon by the counsel for the petitioner, only few are relevant but are not applicable to the facts of the present case. The first one which he relied upon was the decision rendered in the case of S.K. Saha v. Prem Prakash Garwal & ors. reported in (1994) 1 SCC 431 wherein the Hon'ble Supreme Court has held that while transferring all functions of a Department to a Government Corporation, an employee of the said Department, once opted for the service of the Corporation, shall cease to be in the service of the State. In the present case, the petitioner has not exercised his option to join JNIMS and therefore, the question of his ceasing to be in the service of the State Government does not arise. Reliance has also been placed in the decision rendered in the case of Umapati Choudhary v. State of Bihar & anr. reported in (1999) 4 SCC 659 wherein the Hon'ble Supreme Court has held that the deputation involves a voluntary decision of the employer to lend the service of his employee; a corresponding acceptance of such service by the borrowing employer and the consent of the employee to go on deputation. The Hon'ble Supreme Court further held that the appellant therein, having given consent for his permanent absorption in the establishment of the borrowing authority, shall be treated to be a permanent employee of the Board. Again the said ruling of the Hon'ble Supreme will not apply to the facts of the present case for the reason that the petitioner has never been absorbed in the JNIMS and has continued to be the employee of the State Government. Again the said ruling of the Hon'ble Supreme will not apply to the facts of the present case for the reason that the petitioner has never been absorbed in the JNIMS and has continued to be the employee of the State Government. Other decisions are not referred to herein because they have no relevance at all as regards the issue involved herein. 8. Having considered the rival contentions of the parties and the materials placed on record, this court is of the view that the contentions of the learned counsel appearing for the petitioner are misconceived and are not sustainable in law. The writ petition being devoid any merit, is liable to be dismissed. 9. With the above observations and for the reasons stated above, the present writ petition is dismissed with no order as to costs.