Hemam Jamuna Devi vs Union Of India
2021 Latest Caselaw 112 Mani

                      IN THE HIGH COURT OF MANIPUR
                                 AT IMPHAL

                    WRIT APPEAL NO. 42 OF 2020
                                 WITH
                       MC(W.A.) NO.52 OF 2020


Hemam Jamuna Devi, aged about 60 years,
w/o Tayenjam Holen Singh, resident of Uripok KhaidemLeikai,
P.O. and P.S. Imphal, District- Imphal West, Manipur-795001.
                                                           ....... Appellant
                   - Versus -

1. Union of India, through the Secretary, Ministry of Health & Family
Welfare, Government of India, Nirman Bhawan, New Delhi-110001.
2. The Regional Institute of Medical Sciences, Imphal, through its
Director (RIMS), P.O. and P.S. Imphal, District - Imphal West,
Manipur - 795004.
3. The Deputy Director (Admn.), Regional Institute of Medical Sciences, Imphal,
P.O. and P.S. Imphal, District - Imphal West, Manipur-795004.

                                                             ..... Respondents

      For the Appellant                   ::   Mr.B.P.Sahu, Sr.Advocate
      For Respondent No.1                 ::   Mr.S.Suresh, ASG
      For Respondent Nos.2 & 3            ::   Mr.M.Devananda, Advocate
      Date of reserving of Judgment       ::   17.04.2021
      Date of delivery of Judgment        ::   22.04.2021


                                      BEFORE
                HON'BLE THE CHIEF JUSTICE MR. SANJAY KUMAR

                AND

                HON'BLE MR.JUSTICE KH.NOBIN SINGH


The CJ:

[1]             Heard Mr.B.P.Sahu, learned senior counsel for the appellant;

Mr.S. Suresh, learned Assistant Solicitor General for the Union of India; and

Mr.M.Devananda, learned counsel, assisted by Mr.K.Doungel, Deputy Director

(Admn.), RIMS, Imphal, and Mr.Santosh Achom, L.D.C., RIMS, Imphal.

WA No.42 of 2020                                                         Page 1
 [2]          The unsuccessful petitioner in W.P(C) No.208 of 2020 is the

appellant. Her challenge in the said writ petition was to the order dated

01.05.2020 issued by the Deputy Director (Admn.), Regional Institute of

Medical Sciences (RIMS), Imphal, Manipur. By order dated 22.07.2020, a

learned Judge of this Court dismissed the said writ petition. As a result, the

services of the appellant as the Professor-cum-Principal of the College of

Nursing, RIMS, Imphal, were terminated w.e.f. 30.04.2020, vide order dated

27.07.2020 issued by the Director, RIMS, Imphal.

[3] By interim order dated 25.03.2021 passed in M.C(W.A) No. 52 of

2020 filed in this appeal, this Court directed the respondents not to fill up the

post of Professor-cum-Principal of the Nursing College, RIMS, Imphal.

[4] The appellant entered the service of the RIMS, Imphal, after due

selection, as the Professor-cum-Principal of its College of Nursing at Imphal on

25.03.2013. While so, she attained the age of 60 years on 30.04.2020.

Thereupon, the order dated 01.05.2020, impugned in the writ petition, came to

be issued by the Deputy Director (Admn.), RIMS, Imphal, stating as under:-

„No.B/1682/2019-RIMS : 5596 With immediate effect and until further orders, Prof. Heman Jamuna Devi, Principal, College of Nursing, RIMS, Imphal, on attaining the age of 60 years on 30.04.2020 will function as faculty member till she attains the age of 65 years in terms of the Ministry of Health & Family Welfare (Nursing Section) Order No.Z.28015/27/2007-N dated 28th June, 2010 read with F.R. 56 (bbb).

2. Her continuation of service as faculty member, College of Nursing, RIMS, Imphal is subject to the final decision of the Ministry in the matter and excess payment to her, if any, shall be refunded to the institute by her either by adjustment against future payments due to her or otherwise.

3. This has the approval of the Director, RIMS, Imphal.‟

[5] Aggrieved by the aforestated order, the appellant filed the subject

writ petition. Her claim therein was that she had been downgraded/degraded to

the post of faculty member by the said order without any reason and without

WA No.42 of 2020 Page 2 following any procedure. She asserted that the age of superannuation of

nursing teaching faculty had been enhanced from 60 to 65 years and therefore,

the order of demotion was illegal and malafide.

[6] An affidavit-in-opposition was filed by the RIMS, Imphal, through

Mr.K.Doungel, its Deputy Director (Admn.).Therein, he stated that Bye-law 8 of

the Bye-Laws of the RIMS, Imphal, provided that the age of superannuation of

employees would be governed by the rules framed or orders issued by the

Central Government and, in this connection, the Ministry of Health and Family

Welfare, Government of India, vide order dated 28.06.2010, had stated that the

age of superannuation of nursing teaching faculty with M.Sc. in Nursing in

Central Government nursing institutions was enhanced from 60 years to 65

years, subject to the condition that such nurses continued to function as faculty

members after the age of 60 years.

The Deputy Director further stated that as the appellant was

holding the post of Professor-cum-Principal, College of Nursing, and had

completed the age of 60 years on 30.04.2020, the RIMS, Imphal, extended her

age of superannuation from 60 years to 65 years as a faculty member, by the

order dated 01.05.2020, in compliance with its Bye-Laws and the order of the

Central Government. He went on to state the appellant would continue to

function as a faculty member in the rank and pay of Professor in the College of

Nursing, RIMS, Imphal. He asserted that the instructions of the Central

Government explicitly mentioned that the retirement age can be enhanced to

65 years subject to the condition that nursing teaching faculty continue to

function as faculty members only after the age of 60 years. He stated that the

appellant therefore had no option but to avail the benefit of the enhanced

WA No.42 of 2020 Page 3 retirement age of 65 years only as a faculty member or else retire upon

attaining the age of 60 years. He accordingly denied her claim that she had

been downgraded/degraded in service by way of the said order.

[7] Significantly, the Deputy Director admitted in effect that the

College of Nursing, RIMS, Imphal, did not have any separate Bye-Laws and

was bound by the Bye-Laws of the RIMS, Imphal, an autonomous Institute

under the Ministry of Health and Family Welfare, Government of India.

[8] In her rejoinder to the above affidavit-in-opposition, the appellant

asserted that the post of Professor-cum-Principal of the College of Nursing,

RIMS, Imphal, was a teaching faculty post and relied upon the letter dated

05.11.2009 of the Ministry of Health and Family Welfare, Government of India.

She claimed that she had a right to continue in the said post till she attained the

age of 65 years as per the Central Government‟s order dated 28.06.2010.

[9] Be it noted that the Union of India did not file any affidavit-in-

opposition at that stage. However, it chose to address certain letters, which

were produced before the learned Judge on 22.07.2020 at the time of hearing

of the writ petition. One such letter dated 20.07.2020 was addressed to

Mr.S.Suresh, learned ASG, by the Under Secretary, Ministry of Health and

Family Welfare (N.E.Section), Government of India. This letter stated that the

order dated 28.06.2010 of the Ministry of Health and Family Welfare,

Government of India, enhancing the age of superannuation of nursing teaching

faculty with M.Sc. in Nursing from 60 to 65 years was not applicable to

institutions of autonomous organizations like RIMS. He went on to state that the

matter relating to enhancing the age of superannuation of nursing teaching

faculty to 65 years in RIMS was under consideration in the Ministry. The Under

WA No.42 of 2020 Page 4 Secretary concluded by stating that as and when a decision was taken in the

matter, it would have prospective effect and could not be extended to the

appellant, who had reached the age of superannuation on 30.04.2020.

The other letter dated 20.7.2020 was produced before the learned

Judge by Mr. M.Devananda, learned counsel for the RIMS, Imphal, and it was

addressed by the same Under Secretary to the Director, RIMS, Imphal.

Therein, he referred to the Director‟s e-mail dated 17.07.2020 on the subject of

W.P(C) No. 208 of 2020 filed by the appellant and stated that as per the

Ministry‟s letter dated 05.11.2009, the post of Professor-cum-Principal was a

faculty post and the averment that it was not a faculty post would not be

tenable before the Court. He then stated on the same lines as in the other letter

with regard to the order dated 28.06.2010 of the Government of India.

According to him, the RIMS, Imphal, had allowed the appellant to function as

faculty till she attained the age of 65 years in terms of the order dated

28.06.2010, by way of the order dated 01.05.2020, but this was done without

the approval of the Ministry. He therefore advised that her engagement should

be discontinued forthwith. These facts were directed to be incorporated in the

counter/reply to be filed before this Court.

However, as already stated supra, no separate counter was filed

by the Union of India in the writ petition, but upon production of the aforestated

letters the learned Judge recorded the opinion that the letters dated 20.07.2020

clearly indicated that enhancement of the age of superannuation of nursing

teaching faculty in the RIMS, Imphal, was still under consideration before the

Ministry and that the Central Government‟s order dated 28.06.2010 was

applicable to Central Government nursing institutions and was not

WA No.42 of 2020 Page 5 automatically applicable to institutions of autonomous organizations like RIMS.

The learned Judge thereupon concluded that the order dated 01.05.2020

issued by the RIMS, Imphal, allowing the appellant to function as faculty till she

attained the age of 65 years was without basis and dismissed the writ petition.

[10] At this stage, it may be noted that, by its order dated 01.05.2020,

the RIMS, Imphal, had allowed the appellant to continue as faculty till she

attained the age of 65 years. The stand of the RIMS, Imphal, was that she was

not entitled to continue as the Principal of the College of Nursing but she could

continue only as faculty. However, owing to the order passed by the learned

Judge with the observations noted hereinbefore, the appellant was divested of

her right to continue as faculty also. In effect, by approaching this Court, she

suffered an order that placed her in a worse position than she was hitherto. Her

challenge to the order dated 01.05.2020 actually succeeded as the learned

Judge set it aside but the dismissal of her writ petition, while accepting her

prayer, compounded by the opinion expressed therein that she was not entitled

to function as faculty till she attained the age of 65 years, practically sealed her fate. In

consequence, by order dated 27.07.2020, the Director, RIMS, Imphal, allowed

the appellant to retire from the service of the RIMS, Imphal, on attaining the

age of superannuation and terminated her services w.e.f. 30.04.2020.

[11] It would now be apposite to note certain fundamental facts

germane to this adjudication. The RIMS, Imphal, is an autonomous Institute

wholly funded by the Ministry of Health and Family Welfare, Government of

India. It was registered as a society in the year 2007 with its office at

Lamphelpat, Imphal, State of Manipur. Clause IV of its Memorandum of

Association provides that the overall management of the Institute was entrusted

WA No.42 of 2020 Page 6 to i) The Board of Governors, headed by the Union Minister of Health and

Family Welfare, and ii) The Executive Council, headed by the Secretary,

Ministry of Health & Family Welfare, Government of India. The constitution and

members of the Board of Governors and of the Executive Council, set out

thereunder, indicate that these bodies were to be manned by high-ranking

Central and State Government officials. The Rules and Regulations of the

RIMS, Imphal, were also framed on the same lines, indicating that the Board of

Governors and the Executive Council, apart from the committees appointed by

the Board of Governors or the Executive Council, would be the authorities of

the Institute. Clause 8 of the Rules and Regulations deals with the Executive

Council. Clause 8 (iii) states that the management and administration of the

Institute would vest in the Executive Council, which would have the powers and

functions enumerated under sub-clauses (a) to (m) thereof. Sub-clause (a)

empowers the Executive Council to supervise the overall administration and

management of the Institute while sub-clause (b) empowers it to consider and

approve budget estimates, including revised and supplementary expenditure

recommended by the Finance Committee and to apprise the same to the Board

of Governors. Sub-clause (c) provides that the Executive Council has the

power to consider and approve creation, upgradation and abolition of posts

apart from revision of pay scales and allowances, in the light of the

recommendations of the Finance Committee. Sub-clause (d) empowers it to

consider all proposals for expenditure, beyond the powers delegated to the

Director. Sub-clause (j) empowers the Executive Council to frame bye-laws and

procedures for conduct of the affairs of the Institute. Significantly, none of the

aforestated sub-clauses required any of the decisions of the Executive Council

WA No.42 of 2020 Page 7 thereunder to be vetted or approved by the Government of India. On the other

hand, only sub-clause (m), which empowers the Executive Council to amend

the bye-laws, rules and regulations of the Institute, requires prior concurrence

of the Ministry of Health & Family Welfare, Government of India. Therefore, this

is the only area where the Government of India directly plays a role, in so far as

the Executive Council‟s decisions are concerned.

[12] In exercise of the power conferred by Clause 8(j) above, the „Bye-

Laws of the Regional Institute of Medical Sciences (RIMS), 2007‟ were framed.

Bye-law 8, already referred to in the affidavit-in-opposition filed by the RIMS,

Imphal, deals with superannuation and it provides as follows:-

"The age of the superannuation of the employees shall be governed by the rules framed or orders issued from time to time in this regard by the Central Government. Orders issued by the Institute in pursuance of such Rules or Orders of the Central Government shall continue to be enforced until the same is superseded by an order issued under this provision of the Bye-Law."

In effect, unless specifically superseded by a separate order, the

age of superannuation of the employees of the RIMS, Imphal, is directly

governed by the rule framed or order issued by the Central Government in that

regard. It is in this context that the order dated 28.06.2010 issued by the

Central Government assumes significance. By the said order, the Ministry of

Health and Family Welfare (Nursing Section), Government of India, enhanced

the age of superannuation of nursing teaching faculty with M.Sc. in Nursing in

Central Government nursing institutions from 60 to 65 years, subject to the

condition that these nurses continue to function as faculty after the age of 60

years. The order further recorded that the Department of Personnel & Training

should issue a necessary notification under the provisions of the Fundamental

WA No.42 of 2020 Page 8 Rules. In consequence, Fundamental Rule 56(bbb) was inserted, providing to

the same effect.

All that was required thereafter, under Bye-law 8, was that the

RIMS, Imphal, issue an order pursuant to the Central Government‟s order,

fixing the age of superannuation of its employees who were covered thereby.

However, the Executive Council of RIMS, Imphal, passed a separate resolution

in that regard at its 48th meeting held on 15.05.2019. One of the agenda items

before the Executive Council at the said meeting was „Age of superannuation of

faculty for College of Nursing, RIMS, Imphal‟. The resolution passed by the

Council reads as follows: „The Council considered and approved „in principle‟

the proposal relating to age of superannuation of faculty of College of Nursing,

RIMS, Imphal, as per the provisions contained in Ministry of Health & Family

Welfare (Nursing Section) order No. Z.28015/27/2007-N dated 28.06.2010, with

immediate effect. RIMS may send proposal for consideration and approval in

the Ministry‟.

Pursuant thereto, the RIMS, Imphal, issued a Press Release on

15.05.2019, notifying the public at large to that effect.

[13] As stated supra, this resolution was a superfluity as Bye-law 8

made the Central Government‟s order dated 28.06.2010 automatically

applicable and all that was needed was an implementing order to that effect

only by the RIMS, Imphal, and nothing more. That apart, as already noted

supra, the role to be played by the Government of India in the affairs of the

RIMS is limited, in the context of the Memorandum of Association, Bye-laws

and the Rules and Regulations of the RIMS, Imphal, and no approval was

necessary from the Government of India in relation to the age of

WA No.42 of 2020 Page 9 superannuation of employees, which already stood determined under Bye-law

8 read with the applicable order of the Central Government. Therefore, the very

exercise initiated by the RIMS, Imphal, in passing a separate resolution and

seeking approval thereof from the Government of India was redundant and

completely unnecessary. However, unmindful of the same, it appears that the

Government of India also took up the issue in all seriousness and addressed

the aforestated letters to the effect that the appellant would not be entitled to

continue in service by virtue of the Central Government‟s order dated

28.06.2010. These communications obviously proceeded in clear ignorance of

Bye-law 8 of the Bye-laws of the RIMS, Imphal, which gave automatic primacy

to such order of the Central Government.

[14] At this stage, it may also be noted that after the RIMS, Imphal,

established its College of Nursing, the Ministry of Health and Family Welfare

(N.E.Division), Government of India, addressed letter dated 05.11.2009 to the

Director, RIMS, Imphal, conveying approval for creation of faculty and non-

faculty posts. The faculty posts so created were: one post of Professor-cum-

Principal, one post of Professor-cum-Vice Principal, one post of Associate

Professor, five posts of Lecturers and fourteen posts of Tutors. The non-faculty

posts created thereby were: one post of Administrative Officer, one post of P.A.

to Principal, one post of Section Officer, two posts of UDC, one post of

daftry/store keeper and the posts of Lower Division Clerk and Grade IV were

directed to be outsourced. The appellant was appointed to the sanctioned post

of Professor-cum-Principal after due selection in the year 2013. She was

therefore holding a faculty post and in terms of Bye-law 8 read with the Central

Government‟s order dated 28.06.2010 and the Press Release of the RIMS,

WA No.42 of 2020 Page 10 Imphal, implementing the same, she is to retire only upon attaining the

enhanced age of superannuation of 65 years.

[15] It may be noted at this stage that by letter dated 11.09.2020

addressed to the Director, RIMS, Imphal, the Under Secretary, Ministry of

Health and Family Welfare (N.E.Section), Government of India, did convey the

approval of the competent authority to enhancement of the age of

superannuation of nursing faculty with M.Sc. in Nursing in the RIMS, Imphal,

from 60 to 65 years, subject to the condition that these nurses continued to

function as faculty after the age of 60 years. He further stated that the said

provision would be applicable from the date of issuance of the letter. This

exercise was without purpose as Bye-law 8 automatically made applicable the

Central Government‟s order dated 28.06.2010 to the Institute and did not

require either a separate resolution by the Executive Council of the RIMS,

Imphal, or the approval thereof by the Government of India.

[16] Total non-application of mind at all levels is therefore clearly

manifest and unfortunately so, to the detriment of the appellant. Non-

application of mind by the RIMS, Imphal, in the first instance, is patent and

extraordinary, to say the least. There was absolutely no logic or rationale in its

order dated 01.05.2020, whereby it sought to extend the services of the

appellant as faculty till the age of 65 years while holding to the effect that she

could not continue as the Principal of the College. It seems to have been

completely unmindful that the sanctioned faculty posts, already set out in detail

hereinbefore, did not include an individual post of Professor and the appellant

could not have been continued till 65 years without such a post. Surprisingly, in

the affidavit-in-opposition, the RIMS, Imphal, stated that she would continue to

WA No.42 of 2020 Page 11 function as a faculty member in „the rank and pay of Professor‟ in the College,

without even realizing that there was no such post available, as the only

sanctioned post was that of Professor-cum-Principal! That apart, the stance of

the RIMS, Imphal, that the import of the Central Government‟s order dated

28.06.2010 is that the age of superannuation was enhanced, only for the

purpose of continuing as faculty, is utterly incomprehensible. The order merely

stated that the age of superannuation of the nursing teaching faculty with M.Sc.

in Nursing stood enhanced to 65 years and the condition imposed to avail that

benefit was that such nurses should continue to function as faculty after the

age of 60 years. Therefore, they were to continue as nurses and also as

faculty. That condition had no application to the appellant as she held the

faculty post of Professor-cum-Principal and was bound to continue as faculty

even after availing the benefit of the enhanced age of superannuation under

the Central Government‟s order dated 28.06.2010. Further, the contention that

the RIMS, Imphal, had to seek approval from the Government of India due to

financial implications needs mention only to be rejected. The Executive Council

of the RIMS, Imphal, as already noted supra, was empowered to create posts

and revise pay scales apart from budgeting and incurring expenditure, without

approval from the Government of India, and there is no logic or reason in the

RIMS, Imphal, claiming that mere implementation of Bye-law 8 warranted such

approval. All the more so, when it is an autonomous body!

[17] At the very first hearing of this appeal on 04.09.2020, this Court

noted that no affidavit had been filed by the Union of India before the learned

Judge and that the letter dated 20.07.2020 and its contents needed to be

clarified. The matter was accordingly adjourned, granting the Union of India

WA No.42 of 2020 Page 12 an opportunity to file a proper affidavit explaining the correct legal and factual

position in respect of the said letter and the facts of the case. The matter

thereafter underwent five adjournments before this judgment was reserved.

Despite the same, the Union of India did not choose to file an affidavit.

However, on the date of the last hearing, viz., 17.04.2021, Mr.S.Suresh,

learned ASG, produced a copy of the order dated 29.03.2007 issued by the

Under Secretary, Ministry of Development of North Eastern Region,

Government of India, recording that sanction had been conveyed by the

competent authority transferring RIMS, Imphal, from the North Eastern Council,

Shillong, to the Ministry of Health and Family Welfare, Government of India,

with effect from 01.04.2007, on the terms and conditions detailed thereunder.

This document obviously preceded the registration of the RIMS,

Imphal, as an autonomous society. However, this document also does not

indicate any necessity of Government of India‟s approval being obtained for

each and every policy decision of the RIMS, Imphal. Be it noted that Clause

(vii) of the terms and conditions mentioned in this order states that the existing

two-tier management structure should be retained to maintain autonomy of the

Institute. As already noted, the two-tier structure retained under the Bye-Laws

and the Rules and Regulations of the RIMS, Imphal, is through the Board of

Governors and the Executive Council. No other document has been placed on

record to indicate that such two-tiered management structure involved the

Government of India at every stage of the functioning of the RIMS, Imphal.

Further, the practice adopted by the learned counsel appearing in

this Court for the Union of India in producing documents without a supporting

affidavit, and without even making known its stand through a counter, needs to

WA No.42 of 2020 Page 13 be decried in no uncertain terms. It is indeed unfortunate that despite this

matter being taken up at the appeal stage and despite several opportunities

being given to the Union of India to come forward with its stand, it chose to

remain silent but seeks to justify its interference in the functioning of this

autonomous body by producing irrelevant documents. We need say no more.

[18] On the above analysis, this Court finds that the understanding of

the RIMS, Imphal, that the appellant could only be continued as faculty after

attaining the age of 65 years and not against the faculty post of Professor-cum-

Principal of the College is unsustainable on facts and in law. Further, the order

dated 01.05.2020 was without any foundation as the age of superannuation of

the appellant already stood enhanced to 65 years by virtue of Bye-law 8 read

with the Central Government‟s order dated 28.06.2010 and the decision of the

RIMS, Imphal, implementing the same. It needed no further resolution to that

effect by the Executive Council or the Central Government‟s approval thereof.

The writ appeal is accordingly allowed making this position clear

and setting aside the consequential order dated 27.07.2020 issued by the

RIMS, Imphal, against the appellant. The RIMS, Imphal, is directed to reinstate

her in service forthwith with all consequential benefits.

In the light of this final order, no further order needs to be passed MAYANGLAMB AM CHANU in M.C(W.A) No. 52 of 2020, which is accordingly closed. NANDINI Digitally signed by In the circumstances, there shall be no order as to costs.

MAYANGLAMBAM CHANU
NANDINI
Date: 2021.04.22 13:18:58
+05'30'
                                                 JUDGE                                     CHIEF JUSTICE

                            FR
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