Citation : 2021 Latest Caselaw 332 Mani
Judgement Date : 8 December, 2021
IN THE HIGH COURT OF MANIPUR
AT IMPHAL
WP(C) No. 335 of 2017 with
Dr.Chitreswori Khundrakpam, aged about 30 years,
daughter of Kh.Yaima Singh, resident of Brahmapur
Lalji Lakpa Leikai, PO Imphal, PS Porompat,
District Imphal East, Manipur
....Petitioner
-Versus-
1. The Union of India, represented by the
Secretary, Ministry of Health & Family
Welfare, Government of India, New Delhi.
2. The Regional Institute of Medical Sciences
(RIMS), represented by the Director (RIMS)
Lamphelpat, Imphal, Manipur.
....Respondents
BEFORE HON'BLE MR. JUSTICE LANUSUNGKUM JAMIR
For the Petitioner :: Mr. A.Golly, Advocate
For the Respondents :: Mr. S.Suresh, ASG Mr.M.Devananda, Advocate
Dates of hearing ::04-12-2018, 13-12-2018 & 19-12- 2018
Date of judgment :: 08.12.2021 & Order
WP(C)No. 335 of 2017 Page 1 JUDGMENT AND ORDER (CAV)
The Director, Regional Institute of Medical Sciences, Imphal (RIMS in short), issued Advertisement dated 16.05.2016 calling for applications for appointment to the post of Tutor, Dental College, RIMS, Imphal. In the said Advertisement, the qualification required for the post of Tutor, Dental College was BDS Degree of an Indian University or equivalent qualification with one year experience. The petitioner being qualified, applied for the post of Tutor, Dental College, (OBC). By a Notice dated 11.07.2016, the Director, RIMS, Imphal published the list of eligible candidates for the post of Tutor, Dental College, RIMS. In the said Notice, 7 (seven) candidates were found eligible amongst which, the name of the petitioner appear at Sl.No.4. By another Notice dated 20.07.2016 the Director, RIMS Imphal informed that the Interview for the post of Tutor, Dental College, RIMS will be held on 23.07.2016 at 11.00 AM. Thereafter, the Deputy Director (Admn) RIMS, Imphal, submitted the proceedings of the Selection Committee Meeting held on 23.07.2016 for appointment of Tutor, Dental College, RIMS, Imphal to the Secretary (H&FW), Ministry of Health & Family Welfare, Government of India by letter dated 26.07.2016. In the said letter, it is indicated that the post of Tutor, Dental College, RIMS is Group-A. However, the composition of the Selection Committee is for Group-B posts and Tutor approved in the 46th Meeting of the Executive Council, Society of RIMS, Imphal held on 20th October, 2015. The proceedings of the Selection Committee Meeting held on 23.07.2016 was also enclosed in the said letter dated 26.07.2016. In the Proceedings of the Selection Committee, the name of the petitioner was recommended for appointment as Tutor, Dental College, RIMS on regular basis.
WP(C)No. 335 of 2017 Page 2
2. The Section Officer (NE), Government of India, Ministry of Health & Family Welfare wrote a letter dated 8.8.2016 addressed to the Director, RIMS, Imphal stating that on perusal of the letter dated 26.07.2016, that some points have emerged for clarification and the contents of the letter is reproduced herein below:
"(i) There is no mention in the proposal that recommendation of S.C for appointment of Dr.Chitreswori Khundrakpam, as Tutor, has the approval of the Director, RIMS.
(ii) The post of Tutor stated to be Group-A post for which Appointing Authority is Chairman, EC. Accordingly, DPC/Selection Committee supposed for Group A posts would have been convened. Reasons for constitution of DPC/SC for Group B for selection of Tutor is not clear. The same may be clarified.
(iii) Copies of the Advertisements published in the Newspapers have not been enclosed with the proposal. Copies of the Newspapers in which this advt was published may be made available (full sheet) along with the date of publication.
(iv) Adequate justification for keeping this post for OBC category may be indicated along with relevant rule position/Roster.
(v) As per rule, while discharging official duty, any member of his family is appearing there for the interview/exam., the Govt. servant shall inform such matter to his official superior. However no such record of Director has been enclosed, as one of his relative has been stated to be a candidate for the post of Tutor, The same needs clarification.
(vi) Name of the candidate related to the Director, has not been mentioned in the proposal. The same may be indicated.
(vii) The members of SC/DPC working in the Institute under the control of Director RIMS may be indicated.
WP(C)No. 335 of 2017 Page 3
(vii) The details of the post of Tutor may be given in the format given hereunder:
Name No. of GOI Strength Vacancy Remarks.
of Posts/Sanctioned Order in as on
Post strength No. & Position 23.07.2016
date of
creation
of Posts
(enclose
copies)
"
RIMS was, therefore, requested to provide the information with relevant documents in support to process the proposal immediately.
3. Responding to the letter dated 8.8.2016 the Deputy Director (Admn) RIMS wrote back furnishing the required information and the same is also reproduced hereinbelow:
"No.B/310/2016-RIMS Imphal, the 16th August, 2016
(i) The approval of the Director was not sought while forwarding the recommendation of the Selection Committee as one of his relatives appeared in the interview. However, keeping in mind the query raised by the Ministry the approval of the Director, RIMS, Imphal has now been obtained.
(ii) It is true that the post of Tutor in Dental College is Group-A. However, as per the composition approved in the 45th Meeting of the Executive Council (copy enclosed as Annexure-I) it is to be chaired by the Director and DS (NE) is member of it. In this case Prof. Ch.Arun Kumar Singh, Director had submitted one letter No.C/DIR/1/RIMS-2014 dt. 21st July, 2016 to the Member Secretary of the Selection Committee that one of his relatives was appearing in the interview and therefore opted out of the Selection Committee. The Medical Superintendent, RIMS Hospital being the senior most member was unanimously made to chair the meeting by all the members present. This is
WP(C)No. 335 of 2017 Page 4 reflected in the proceeding of the S.C meeting. Accordingly, it was convened at the Institute level.
(iii) Copy of the Advertisement is at Annexure-II.
(iv) As per the Reservation Roster maintained by the Institute the post is earmarked for OBC Category. A copy of the Reservation Roster is enclosed as Annexure-III.
(v) The Director, RIMS in his letter dt 21st July, 2016 informed the Member Secretary of the Selection Committee that one of his relatives was appearing in the interview and had requested not to attend the Selection Committee. A copy of the letter is enclosed at Annexure-IV. The same is also reflected in the Selection Committee meeting proceedings dt. 23rd July, 2016.
(vi) The Director, RIMS did not mention the name of his relative in his letter dated 23rd July, 2016 and therefore the Selection Committee was not officially aware of the particular of the candidate. However, if the same is insisted formal request will be made for providing the same information by the Director.
(vii) The Medical Superintendent, RIMS Hospital, Principal, Dental College and the Dy. Director (Admn) RIMS were the members of the Selection Committee working under the control of Director, RIMS. The Principal, Dental College, RIMS, Imphal was opted as subject expert.
(viii) The sanctioned strength of Tutor is as follows:
Name No. of GoI Order No. & Strength Vacancy
of posts/sanctioned date of creation in as on
post strength of posts position 23.07.2016
Registrar/Tutor
from erstwhile
Dentistry Deptt.
A copy of
approved RRs is
enclosed as
Annexure-V
4 posts vide
MoH & FW letter
No.U
WP(C)No. 335 of 2017 Page 5
12025/75/2008-
NE dt 5.11.2009
1 post vide MoH
& FW letter No.U
12025/75/2008-
NE dt 13.4.2016
(ix) Dental Council of India had pointed out in its letter No.DE-3(309)-2015 dated 15th June, 2015 (copy enclosed as Annexure-VI) that there is a deficiency of one post of Tutor. Therefore, one post of Tutor was created recently and advertised to meet the deficiency pointed out by DCI."
4. By another letter dated 9.11.2016, the Under Secretary, Government of India, Ministry of Health & Family Welfare, wrote to the Director, RIMS, Imphal stating that the matter had been examined and it has been decided that the selection proposed by the Selection Committee of RIMS for the post of Tutor be declared null and void and, therefore, advertisement be published inter alia with the required details of pay-scale, qualification of the post in the Employment News and leading National Newspapers including the website of RIMS, as per Government Instructions. It was further stated that since Tutor is a Group-A post in RIMS its selection may be made by the Selection Committee constituted for Group-A post and action may also be initiated to include Group-A post of Tutor in the Selection Committee for Group- A post.
5. Consequent to the letter dated 9.11.2016, the Director, RIMS issued a notification dated 6.12.2016 cancelling the selection process initiated for appointment of Tutor, Dental College, RIMS Imphal on technical grounds. Thereafter, the Director, RIMS issued another Advertisement dated 6.12.2016 for filling up 1 (one) post of Tutor, Dental College, (OBC) and qualification of the post was shown as Group-A.
6. Being aggrieved with the cancellation of the selection process initiated for appointment of Tutor, Dental College, RIMS Imphal,
WP(C)No. 335 of 2017 Page 6 pursuant to the Advertisement dated 16.5.2016 as well as the issuance of new Advertisement dated 6.12.2016, the petitioner has filed the present writ petition.
7. Heard Mr.A.Golly, learned counsel for the petitioner. Also heard Mr.S.Suresh, learned ASG for respondent No.1 and Mr.M.Devaanda, learned counsel appearing for respondent No.2.
8. Mr. A. Golly, learned counsel for the petitioner submits that after the Advertisement dated 16.5.2016 was issued, the petitioner had applied for the post of Tutor, Dental College (OBC) and on being found eligible, her name was listed at Sl. No. 4 in the list of eligible candidates as notified by the Notice dated 11.7.2016. The petitioner appeared before the Selection Committee on 23.07.2016 and was thereafter recommended for appointed on regular basis as Tutor, Dental College, RIMS. The said proceedings of the Selection Committee held on 23.07.2016 was submitted to the Secretary (H & FW), Ministry of Health & Family Welfare by letter dated 26.07.2016 enclosing a copy of the proceedings of the Selection Committee. However, the Ministry of Health & Family Welfare had made certain clarification by the letter dated 8.8.2016. Thereafter, the RIMS authorities by letter dated 16.08.2016 wrote back to the Ministry of Health & Family Welfare clarifying the queries.
9. The learned counsel for the petitioner also submits that the minutes of the Executive Committee Meeting of RIMS, Imphal, which was held on 20.11.2014, approving composition of Selectin Committee/DPC for the post of Group-A and for the post of Group-B were also approved by the Secretary, Ministry of Health & Family Welfare in his capacity as Chairman of the Executive Committee, RIMS by letter dated 3.12.2014 written by the Section Officer, (NEMI) and
WP(C)No. 335 of 2017 Page 7 addressed to the Director, RIMS. Therefore, when the Secretary, Ministry of Health & Family Welfare, had given his approval to the minutes of the Executive Committee Meeting of RIMS held on 28.11.2014 approving the composition of Selection Committee/DPC for Group-A and B posts, the respondents could not have declared the Selectin Process initiated for appointment in Dental College, RIMS pursuant to the Advertisement dated 16.5.2016 and cancelled on technical grounds.
10. Learned counsel for the petitioner draws attention of this Court to the proceedings of the 45th Meeting of the Executive Council, Society of RIMS, Imphal held on 20.11.2014 approving the composition of the Selection Committee/DPC for Group-A and Group-B posts. In the said approval it is clearly indicated that the post of Assistant Professor and above (excluding Director), Medical Superintendent, Deputy Director (Admn), Chief Accounts Officer and Financial Advisor, Senior Librarian and Librarian falls under Group-A post and non-teaching posts and post of Tutor falls under Group-B post. As regards the composition of Selection Committee/DPC for Group -B posts, the Director, RIMS Imphal is the Chairman, Director/Deputy Secretary looking after the affairs of RIMS, Imphal, the Ministry of Health & Family Welfare, Government of India, one member of the Executive Council, Society of RIMS, Imphal or a Nominee of the beneficiary States, not below the rank of Deputy Secretary/Joint Director (by rotation), Medical Superintendent, RIMS Hospital, Imphal and one Expert in the subject concerned, were members and Deputy Director (Admn) RIMS was the Member Secretary. Thereafter, the Director, RIMS issued an order dated 25.2.2015 in pursuance to the decision taken by the 45th Meeting of the Executive Council for composition of the Selection Committee/DPC of Group-A, Group-B, Group-C and D, post of Senior Resident/CMO, Group-A and
WP(C)No. 335 of 2017 Page 8 Group-B post along with other post. It is submitted that as the selection of the petitioner has been done by an authorized Selection Committee as approved by the Executive Council as well as by the Secretary, Ministry of Health & Family Welfare, the question of declaring the Selection Process pursuant to the Advertisement dated 16.5.2016 being cancelled on technical ground is highly illegal. He also submits that the action of the respondents would clearly demonstrate that the cancellation of the Selection Process was done against their own Rules. Referring to the Memorandum of Association, Rules & Regulations and Bye laws of RIMS, he relies on Regulation 10, which provides for Constitution of other Committees. Regulation 10 (2) (a) provides for the post of Registrar/Demonstrator/Senior Resident/Senior Tutor and Group-B non-teaching Staff. When the Regulation provides that the post of Tutor is a Group-B post, the authorities were, therefore, debarred from taking a stand/action against their own Rules and the same is also not tenable in law. It is further submitted that the selection has been done by a competent Selection Committee in terms of the Rules and no reasons have been given while cancelling the process of selection initiated in terms of the Advertisement dated 16.5.2016. He places reliance in the case of (1) Dipak Babaria & Anr Vs State of Gujarat & Ors reported in (2014) 3 SCC 502, (2) State of Punjab Vs Bandeep Singh & Ors reported in (2016) 1 SCC 724, (3) T.P Senkumar, IPS Vs Union of India & Ors reported in (2017) 6 SCC 801, (4) Bhagwan Parshu Ram College & Anr Vs State of Haryana & Ors reported in (1996) 6 SCC 46, (5) Director, SCTI For Medical Science & Technology & Anr Vs M.Pushkaran reported in (2008) 1 SCC 448 and (6) East Coast Railway & Anr Vs Mahadev Appa Rao & Ors reported in (2010) 7 SCC
678.
WP(C)No. 335 of 2017 Page 9
11. Mr.Suresh, learned ASG appearing on behalf of respondent No.1 submits that the selection process initiated pursuant to the Advertisement dated 16.5.2016 was cancelled as the Selection Committee constituted was a wrong composition and contrary to the Rules and Regulations. He submits that the RIMS authority has stated that the post of Tutor is a Group-A post and, therefore, the Selection Committee constituted for Group-A post should have initiated the proceedings for selection of candidates. Therefore, the RIMS authorities were requested to provide the factual position/detailed information on appointment of Tutor, RIMS Imphal. After examination, it was also found that the petitioner, whose name was recommended by the Selection Committee of RIMS for the post of Tutor was related to the then Director, RIMS Imphal. He submits that the Director did not inform the higher authorities with regard to his non-participation in the selection process. However, he informed only to his subordinate for not being able to participate in the Selection Committee. He also submits that there has been complaints of irregularities and anomalies in the Selection Process of Tutor stating that the mala fide practice was adopted to favour some candidate and incomplete information was given in the Advertisement published for the post. Accordingly, a decision was taken to quash the selection process that was initiated pursuant to the Advertisement dated 16.5.2016 with the further direction to re-advertise the post giving full details in the Employment News and other leading Newspaper as per Government orders to give wide publicity across the country to eligible candidates. He further submits that the recommendation made by the Selection Committee was not approved by the competent authority and was only in the recommendation stage and, therefore, the petitioner accrues no right to claim for appointment, particularly when her recommendation has been made by a wrongly constituted Selection Committee. As the RIMS authorities had committed grave mistake in the
WP(C)No. 335 of 2017 Page 10 composition of the Selection Committee, the error committed was rectified by the respondent No.1 and, therefore, the cancellation of the process is justified. He also places reliance in the case of (1) Shankarsan Dash Vs Union of India reported in (1991) 3 SCC 47 (2) State of A.P & Ors Vs D.Dastagiri & Ors reported in (2003) 5 SCC 373, (3) State of Uttar Pradesh & Anr Vs Uttar Pradesh Rajya Khanij Vikas Nigam Sangharsh Samiti & Ors reported in (2008) 12 SCC 675 & (4) Dipak Babaria & Anr Vs State of Gujarat & Ors reported in (2014) 3 SCC 502.
12. Mr.Devananda, learned counsel appearing on behalf of the respondent No.2 submits that the post of Tutor is a Group-A post for which the appointing authority is the Chairman, Executive Council, i.e. Secretary (Health & Family Welfare) Ministry of Health & Family Welfare. However, the 45th Executive Council, in its meeting held on 20.11.2014 had approved the Selection Committee for Group-B post for selection of Tutor. Thereafter, the recommendation of the Selection Committee was submitted to the Secretary, Ministry of Health & Family Welfare, for obtaining approval. Drawing attention of this Court to the Recruitment Rules for the post of Tutor, Dental College, RIMS, Imphal, he submits that the post of Tutor is a Group-A Gazetted Post. He places reliance in the case of (1) Secy Deptt of Home Secy A.P & Ors reported in (2005) 2 SCC 756, (2) State of U.P & Ors Vs Rajkumar Sharma & Ors reported in (2006) 3 SCC 330, (3) Kastha Niwarak Grahnirman Sahakari Sanstha Maryadit, Indore Vs President, Indore Development Authority reported in (2006) 2 SCC 604, (4) Sneh Prabha (Smt) & Ors Vs State of U.P & Anr reported in (1996) 7 SCC 426 (5) Faridabad CT SCAN Centre Vs D.G.Health Services & Ors reported in (1997) 7 SCC 752.
13. I have heard learned counsel appearing for the parties.
WP(C)No. 335 of 2017 Page 11
14. The Advertisement dated 16.5.2016 has been considered by this Court. Therein, the pay scale of Tutor, Dental College is indicated as Rs.15,600-39100 + GP Rs.5,400/-. There is no indication in the Advertisement that the post of Tutor is either Group-A or Group-B.
15. The Dental College, Regional Institute of Medical Sciences, Imphal Tutor Recruitment Rules, 2009 (Rules of 2009 in short) has been considered. In the said Rules, the post of Tutor is indicated as Group-A (Gazetted) and method of recruitment is also indicated by direct recruitment. The bye-laws of the Regional Medical Sciences, 2007 (Bye- laws of 2007 in short) has also been considered. Therein Bye-law No.3
(iii) reads as under:
"3 (iii) The Institute shall follow the pattern of grading of the post as may be prescribed from time to time by the Central Government and for the time being the posts shall be grouped into the following grades
a) Group A Scale of pay with a maximum not less than Rs.13,500/-
b) Group B Scale of pay with a maximum not less than Rs.9,000/- but less than Rs.13,500/-
c) Group C Scale of pay with a maximum of over
Rs.4,000/- but less than Rs.9,000/-
d) Group D Scale of pay with a maximum of which is
Rs.4000/- or less"
A conjoint reading of the Recruitment Rules, of 2009 and Bye-laws of 2007 would clearly indicate that the post of Tutor is Group-
A Gazetted, even if it is not indicated in the Advertisement dated 16.5.2016. However the pay scale indicated in the Advertisement clearly indicates that it is a Group-A post.
WP(C)No. 335 of 2017 Page 12
16. A perusal of the letter dated 26th July 2016 by which the proceedings of the Selection Committee meeting for appointment of Tutor, Dental College RIMS, Imphal was submitted to the Secretary (H & FW), Ministry of Health and Family Welfare, Government of India clearly indicates that the post of Tutor is a Group-A post. The letter dated 16.8.2016 written by the Deputy Director (Administration) RIMS Imphal and addressed to the Deputy Secretary (NE), Ministry of Health and Family Welfare, Government of India has also been considered. Therein at para "ii" it is clearly stated that the post of Tutor in Dental College is Group-A. However, an explanation is made that as per the composition in the 45th Meeting of the Executive Council the DPC is to be chaired by the Director and DS (NE) as a member.
17. The proceedings of the 45th Meeting of the Executive Council Society of RIMS Imphal, held on 20.11.2014 has also been considered wherein at Agenda Item No.7, the composition of Selection Committee/DPC for recruitment, crossing of probation and confirmation to the post of Group-A, B, C and D in RIMS Imphal is reproduced herein below:
"Agenda Item No.7: Composition of Selection Committee/DPC for recruitment, crossing of Probation and Confirmation to the post of Group A, B, C and D in RIMS Imphal.
The Executive Council considered and approved the composition of the following Selection Committees/DPCs. While agreeing to the proposal the EC also directed that one SC/ST Officer shall be included as a member of such committees.
A. For the post of Group 'A'
[Assistant Professor and above (excluding Director), Medical Superintendent, Deputy Director (Admn), Chief
WP(C)No. 335 of 2017 Page 13 Accounts Officer-cum-Financial Advisor, Senior Librarian and Librarian]
1. Director General of Health Services, Chairman Government of India
2. Joint Secretary looking after the Member affairs of RIMS, Imphal in the MOH& FW, Government of India`
3. One member of the Executive Member Council Society of RIMS Imphal (by rotation)
4. One expert in the subject concerned Member from outside the Institute
5. Director, RIMS, Imphal Member Secretary
B. For the post of Group-B [Group-B non-teaching posts and or the post of Tutor]
1. Director RIMS Imphal Chairman
2. Director/Deputy Secretary looking Member after the affairs of RIMS, Imphal in the MOH & FW, Government of India.
3. One member of the Executive Member
Council, Society of RIMS, Imphal or a
nominee of the beneficiary States not
below the rank of Deputy
Secretary/Joint Director (by rotation)
4. Medical Superintendent, RIMS Member
Hospital, Imphal
5. One expert in the subject concerned Member
6. Deputy Director (Admn.), RIMS Member
Secretary
While considering the composition of committees for the post of Group-A, the post of Tutor is not indicated. However, the post of Tutor appears for the post of Group-B. In the considered opinion of this Court, the Executive Council had also taken a wrong decision contrary to the Recruitment Rules of 2009 as well as the Bye-Laws of 2007 while considering the composition of Selection Committee/DPC for the post of
WP(C)No. 335 of 2017 Page 14 Tutor and the Selection Committee/DPC proceeded on the decision taken by the Executive Council. In the considered opinion of this Court, a wrong decision taken by the Executive Council would give no legal right to the petitioner for claiming to be appointed as Tutor, Dental College, RIMS on the basis of the proceedings of a wrongly constituted Selection Committee held on 23.7.2016 inasmuch as the Selection Committee so constituted was against the Recruitment Rules of 2009 and also the Bye-Laws of 2007.
18. The contention of learned counsel for the petitioner that the minutes of the Executive Council Meeting of RIMS held on 28.11.2014 has the approval of the Secretary (MOH & FW) in his capacity as Chairman of the Executive Committee, RIMS for taking action in the matter as reflected in the letter dated 3.12.2014 written by the Section Officer (NEMI) and addressed to the Director, Regional Institute of Medical Sciences, Imphal, has been considered by this Court.
As already held by this Court that the Executive Council had erred in making the composition of Selection Committee/DPC for the post of Tutor as the same is not in consonance with the Recruitment Rules of 2009 and Bye-laws of 2007, the contention of learned counsel holds no water and the same is rejected.
19. Another important point of note is that the recommendation of the wrongly constituted Committee is also only in the recommendary stage. No approval has been given to the said recommendation. Therefore, the petitioner has no legally vested right to claim for appointment on the basis of the said recommendation particularly when no approval has been given.
WP(C)No. 335 of 2017 Page 15
20. The authorities cited by the learned counsel for the petitioner has also been considered. However, in the facts and circumstances of the present case in hand, the same are not applicable.
21. In the facts and circumstances of what has been discussed hereinabove, there is no merit in the writ petition and the same is dismissed. However with no order as to cost.
22. Interim order passed earlier stands vacated.
JUDGE
kim/priyojit
CHONGNUNKI Digitally signed by CHONGNUNKIM GANGTE DN: c=IN, o=High court of manipur, ou=HIGH COURT OF MANIPUR, pseudonym=9e33b348bf6bf41a7b7d571fef645245e9c315df39f93d9f 997f6f6825f03026, postalCode=795002, st=MANIPUR,
M GANGTE serialNumber=3c25b417b8ab4f2e15488e6a09fe004b75d3e17ee1aa6 4940e881eed05f8ce66, cn=CHONGNUNKIM GANGTE Date: 2021.12.09 12:53:49 +05'30'
WP(C)No. 335 of 2017 Page 16
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