Smt. M. Mangijaobi Devi vs The Jawaharlal Nehru Institute Of
2022 Latest Caselaw 248 Mani

                                                          Page 1 of 16




                  IN THE HIGH COURT OF MANIPUR
                            AT IMPHAL

      WP(C) No.35 of 2017 with MC(WP(C)) No.5 of 2022 with
     MC(WP(C)) No.135 of 2018 with MC(WP(C)) No.218 of 2021


Smt. M. Mangijaobi Devi, aged about 43 years,
w/oSagapamIbomcha, resident of KhuraiKonsam
Leikai, PO Lamlong PS, Porompat and Imhal East
District, Manipur.
                                         ....Petitioner

                      -Versus-

1.      The Jawaharlal Nehru Institute of
        Medical Sciences Society Manipur,
        represented by its Director (JNIMS),
        Porompat, Imphal East, Manipur.

2.      The Chairman, Jawarhalal Nehru Institute
        of Medical Sciences, Porompat, Imphal
        East, Manipur.

                                               ... Official Respondents

3. Ch.Mamata Devi,

4. Th.Satyabhama Devi,

5. N.Jenny Devi,

6. O.Omila Devi,

7. K.Dhrubatara,

8. P.Jeena Devi,

9. N.Babyrose Devi,

10. Ph.Janapriya Devi,

11. L.Dayaton,

12. CharisThapa,

13. A.Yaralkumari,

14. W.Ranjita Devi,

15. H.Dhanabati Devi,

16. SushilaThokchom,

17. K.Bidyalakshmi Sharma,

18. L.Poda Devi,

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19. M.Brajeshwori Devi,

20. N.Jogeta Devi,

21. A.Sanatombi Devi,

22. M.Anushwori Devi,

23. Kh.Ibemma ,

24. H.ShayaraniChanu,

25. L.Bimola Devi,

26. O.Sangeeta Devi,

27. H.Rajshree Devi,

28. M.Sophia Devi,

29. L.Sanjarani Devi,

30. Th.Nirmala Devi,

31. AnjanaNgangbam,

32. Kh.Premabati Devi,

33. S.Memthoibi Devi,

34. O.Mirabai Devi,

35. L.Bijuli Devi,

36. R.K.Priyalakshmi Devi,

37. P.Juliet,

38. Th.Memcha Devi,

39. LeishnaLaishram Devi,

40. Kh.Triveni Devi,

41. T.Narmada Devi,

42. Th.Shiroilily Devi,

43. L.Bhanumati Devi,

44. Kh.Sandhyarani Devi,

45. Th.Vumika Devi,

46. Sanjeev Singh Okram,

47. O.Bijiyaluxmi Devi,

48. Ch.Binapani Devi,

49. Y.Victoria Devi,

50. Th.Rebita Devi,

51. RinaPhijam,

52. VungngaihdinPaite,

53. Shining Maku,

54. D.MuiranMaring,

55. LhingnuHangshing,

56. ThemlaldinGangte,

57. D.ToshangphunMaring,

58. N.Ranjeeta,

59. G.Jacinta Moses,

60. ChongboiGangte,

61. The State of Manipur through the

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Commissioner (Health & FW), Govt of Manipur, Imphal, Manipur.

62. The Director of Health Services, Govt of Manipur.

....Respondents

BEFORE HON'BLE MR. JUSTICE LANUSUNGKUM JAMIR

For the Petitioner :: Mr.Kh.Tarunkumar, Advocate,

For the Respondents:: Mr.LeninHijam, Addl. A.G, Manipur, Mr.H.S.Paonam, Sr.Advocate, Mr.Y.Nirmolchand, Sr.Advocate& Mr.M.Hemchandra, Sr.Advocate.

Dates of hearing ::          05.04.2022

Date of judgment/ ::         06.06.2022
Order


                       JUDGMENT AND ORDER
                             (C A V)

The Director of Health Services, notified vacancies to the Employment Exchange, Manipur on 17.08.2006 in respect of 200 (two hundred) posts of Staff Nurses under the Medical Department, Government of Manipur. Out of two hundred posts, 67 (sixty seven) posts were reserved for Scheduled Tribe category, 7 (seven) posts for Scheduled Caste category and remaining 126 (one hundred and twenty six) posts for unreserved/general category. The age limit was prescribed as 35 years and below (relaxable as admissible under the Rules).

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Thereafter,     by    Notification/Advertisement   dated   17.08.2006,

applications were called for filling up of two hundred posts of Staff Nurses on direct recruitment and the mode of selection comprised of a written examination and viva voce (interview).

[2] The petitioner and the private respondent Nos.3 to 60, all applied in terms of the Advertisement dated 17.08.2006. The petitioner and private respondent Nos.3-60, all qualified in the written examination and thereafter they appeared in the viva voce and on being selected, were recommended by the Departmental Promotion Committee, for appointment to the two hundred posts of Staff Nurse in their respective categories. The petitioner being from SC category was also recommended and her name appear at Sl.No.7 under the SC category. Accordingly, by Order dated 16.12.2006, the Director of Health Services, Manipur appointed the petitioner as well as the private respondent Nos.3-60 along with others to the post of Staff Nurse on regular basis in the Health Department. By another order dated 12.03.2007, transfer and posting of Grade-III and IV employees under the Medical Directorate were made and the petitioner was posted to the Jawaharlal Nehru Institute of Medical Sciences Hospital. A combined seniority list for Staff Nurses, JNIMS as on 31.08.2016 was fixed and notified by Notification dated 31st August, 2016 by the Director, Jawaharlal Institute of Medical Sciences (hereinafter JNIMS) wherein, the name of the petitioner appear at Sl.No.73 and her date of appointment is indicated as 16.12.2006 and her date of absorption is shown as 4.2.2016.

Another Notification dated 6.9.2016 was issued by the Director, JNIMS stating that 9 (nine) nos. of Staff Nurses who were absorbed in JNIMS, were left out in the said Notification

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dated 31.08.2016 and, therefore, after inclusion of their names a new Combined Tentative Seniority List for Staff Nurses, JNIMS is issued. In the said Notification dated 6.9.2016 the name of the petitioner appear at Sl.No.78.

[3] Being aggrieved with the Notification dated 6.9.2016, the petitioner submitted a representation to the Director, JNIMS on 9.9.2016 raising various issues regarding preparation of the combined Tentative Seniority List. Thereafter, the Director, JNIMS issued Notification dated 13.12.2016 publishing the Final Seniority List for Staff Nurses, JNIMS as on 13.12.2016. In the said Final Seniority List, name of the petitioner appear at Sl.No.78.

Again on 17.12.2016, the Chairman, Executive Committee, JNIMS issued an order on the recommendation of the Selection Board meeting promoting 38 (thirty eight) Staff Nurses to the post of Nursing Sisters, JNIMS with immediate effect.

Being aggrieved, the petitioner is before this Court impugning Notification dated 13.12.2016 whereby the Final Seniority List for Staff Nurses, JNIMS as on 13.12.2016 was notified and Order dated 17.12.2016 promoting 38 (thirty eight) Staff Nurses to the post of Nursing Sisters, JNIMS.

[4] Heard Mr.Kh.Tarunkumar, learnd counsel for the petitioner. Also heard Mr.LeninHijam, learned Addl. A.G, Manipur appearing for respondent Nos.1, 2, 61 and 62, Mr.H.S.Paonam, learned senior counsel appearing on behalf of respondent Nos.12, 13, 17, 18, 20, 21, 22, 24, 29, 31, 34, 36, 37, 39 & 40 andMr.Y.Nirmolchand, learned senior counsel appearing for respondent Nos.3, 8, 9, 52, 53, 56, 59 and 60.

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[5]            Mr.Kh.Tarunkumar, learned counsel for the petitioner

submits that the appointment of the petitioner by order dated 16.12.2006 was not made on merit basis inasmuch as there is no mention in the appointment order that the appointment was made on merit basis. He submits that the appointment order dated 16.12.2006 consists of three lists of Staff Nurses, i.e. one list of Staff Nurse - General, one list of Staff Nurse - ST and one list of Staff Nurse - SC. This would indicate that the appointment order was not made on the basis of merit. He therefore submits that when appointments were not made in order of merit, determination of seniority of the Staff Nurse should be made on the basis of date of birth in terms of the decisions passed by the Hon'ble Supreme Court. However, in the instant case, the settled position of law has been totally overruled and the Tentative Seniority list of 31.08.2016 was published without following the prescribed norms for consideration of seniority and further, the Final Seniority List was published without considering the objections made by the petitioner.

[6] It is also submitted that the second Tentative Seniority List notified by the Notification dated 6.9.2016 was never notified and circulated to the concerned Staff Nurses and, therefore, the petitioner had no knowledge about the second Tentative Seniority List and it was only after issuance of the impugned promotion Order dated 17.12.2016, she came to know about the existence of the Notification dated 6.9.2016. It is submitted that the name of the petitioner appear at Sl.No.73 in the Tentative Seniority List notified by the Notification dated 31.08.2016 and her name has been pushed down to Sl.No.78 in

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the second Tentative Seniority List notified by Notification dated 6.9.2016.

[7] Learned counsel for the petitioner while assailing the order dated 17.12.2016 by which the private respondents were given promotion to the post of Nursing Sister JNIMS submits that as the order dated 17.12.2016 was passed on the basis of the Final Seniority List notified by Notification dated 13.12.2016, the same is not sustainable in law. He further submits that the promotion Order dated 17.12.2016 in respect of private respondents is the outcome of the impugned Notification dated 13.12.2016 and therefore the promotion of the private respondents is also not sustainable in law. Learned counsel for the petitioner also submits that when appointments are made simultaneously without candidates being placed in order of merit, the seniority should be determined on the basis of the date of birth. In the present case in hand, the date of birth of the petitioner is 1.3.1973 and rest of the private respondents are junior to her in respect of age and therefore, her name should have been above the names of the private respondents and, therefore, submits that the promotion Order dated 17.12.2016 is liable to be quashed and set aside inasmuch as her juniors have been given promotion by superseding the petitioner in terms of the impugned Final Seniority List notified by the Notification dated 13.12.2016. He places reliance in the case of D.P.DasVs Union of India &Ors reported in (2011) 8 SCC 115.

[8] Learned counsel for the petitioner relying on the reply affidavit filed against the affidavit in opposition filed by the respondent Nos.1 and 2 submits that the petitioner being

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suspicious of some foul play in her appointment as Staff Nurse, her husband had filed an application under RTI Act seeking information regarding the mode of selection at the time of her appointment by asking whether the appointment was done on merit basis or not. In reply, the Addl. Director, Health Services Manipur stated that the mode of selection done either on merit list or without combined merit list cannot be furnished since the Selection Committee did not specifically mention the same in the relevant file. However, it is normally presumed that every selection was done on merit basis. He therefore, submits that as the concerned authorities had failed to indicate that appointment was done purely on merit basis it should be treated that the appointment of the petitioner was done not on merit basis.

[9] Mr.Lenin, learned Addl. A.G, Manipur appearing on behalf of the official respondents, on the other hand submits that the final Seniority List notified on 13.12.2016 has been prepared and finalized after consideration of the claims and objections submitted by the interested parties including the petitioner. Learned Addl A.G, further submits that the relevant Recruitment Rules for the post of Staff Nurses provides that the post of Staff Nurse is a selection post and method of recruitment is by direct recruitment and, therefore, the recruitment to the post of Staff Nurse in the Medical Directorate is done by selection, purely on the basis of merit. The mere existence of separate list of Staff Nurse for General Candidates, ST Candidates and SC Candidates cannot be construed that the selection and appointment was not made in order of merit. The selection and appointment of Staff Nurse by the order dated 16.12.2006 was done purely on the basis of merit in strict compliance with the relevant Rules,

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Guidelines and Standing Orders issued from time to time by the competent authorities in this regard. He also submits that the petitioner is challenging the Final Seniority List notified by the Notification dated 13.12.2016 without challenging the initial appointment Order dated 16.12.2006, the present writ petition is not maintainable inasmuch as the Final Seniority List has been notified in consonance with the appointment order dated 16.12.2006. He also submits that the impugned Order of promotion dated 17.12.2016 by which 38 (thirty eight) Staff Nurses were promoted to the post of Nursing Sisters, JNIMS were done in accordance with the appointment order dated 16.12.2006 and, therefore, there is no illegality in the order dated 17.12.2016 particularly when the appointment of the petitioner and private respondents by order dated 16.12.2006 was done on merit basis. He also submits that the petitioner was selected under the SC category and not under the General Category and, therefore, the petitioner cannot claim seniority over the General Category or the ST Category as a matter of right, particularly when she was placed at Sl.No.7, i.e. last position amongst SC Category. He also submits that the proceedings of the DPC would clearly indicate that the recommendation of the two hundred candidates (126 General, 67 ST and 7 SC) for appointment to the post of Staff Nurses was made on the basis of merit as detailed in Annexure-A of the DPC Minutes. Under the circumstances, the petitioner has no right to claim seniority over the General Category or the ST Category or even amongst the SC Category. He also places reliance in the case of State of Tamul Nadu & Ors Vs K.Shobana & Ors reported in (2021) 4 SCC 686.

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[10]           Mr.H.S.Paonam, learned senior counsel appearing for

some of the private respondents also submits that a perusal of the appointment order dated 16.12.2006 would clearly indicate that the appointment of the Staff Nurses were done on merit basis inasmuch on a perusal of the Roll Numbers of the Staff Nurses- General, SC and ST would indicate that they are not in series but are on the basis of merit. Relying on the affidavit of the Administrative Secretary, filed on 12.03.2021, learned senior counsel submits that the proceedings of the DPC clearly indicates that the recommendations were made for appointment of two hundred candidates on merit basis. However, the petitioner has failed to challenge the order of appointment dated 16.12.2006 which was issued strictly in terms of the recommendation of the DPC and therefore, the present writ petition is not maintainable.

Learned senior counsel also submits that the petitioner has failed to implead the persons appearing at Sl.Nos.13 to 21 of the Final Seniority List of Staff Nurses notified on 13.12.2016. As there is non-joinder of parties, on this ground also the writ petition deserves to be dismissed.

[11] Mr.M.Hemchandra, learned senior counsel appearing for respondent Ns.6 and 10, while endorsing the submission made by Mr.H.S.Paonam, learned senior counsel for some of the private respondents submits that the petitioner has filed the representation only after a lapse of ten years and, therefore, on this ground the writ petition deserves to be dismissed on the grounds of delay and laches. He also submits that the respondent Nos.6 and 10 appears at Sl.Nos.9 and 16 under the General Category, while the name of the petitioner appear at Sl.No.7 under the SC Category which clearly indicates that the respondent Nos.6

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and 10 are more meritorious than the petitioner as the petitioner was selected under the reserved category while respondent Nos.6 and 10 have been appointed under the unreserved category. As respondent Nos.6 and 10 are more meritorious than the petitioner, they were placed above the petitioner in the Tentative Seniority List issued vide Notification dated 31.08.2016, second Tentative Seniority List issued vide Notification dated 6.9.2016 and Final Seniority List issued vide Notification dated 13.12.2016. After issuance of the Notification dated 13.12.2016 the Selection Board had its meeting on 16.12.2016 and, accordingly, the respondent Nos.6 and 10 along with 36 (thirty six) others were recommended for promotion to the post of Nursing Sisters by the order dated 17.12.2016. Under such circumstances, as no illegality has been done by the respondents and petitioner having failed to substantiate her stand that the appointment order dated 16.12.2016 was not done on the basis of merit, the writ petition deserves to be dismissed. He also places reliance in the case of Delhi Administration VsGurdip Singh Uban & Ors reported in (2000) 7 SCC 296, Shyam Telelink Ltd Now Sistema Shyam Teleservices Ltd Vs Union of India reported in (2010) 10 SCC 165and Union of India &OrsVs Lieutenant Colonel Kuldeep Yadav reported in (2019) 10 SCC 449.

[12] Mr.Y.Nirmolchand, learned senior counsel appearing on behalf of some of the private respondents also have a similar submission on the lines of Mr.H.S.Paonam, learned senior counsel and Mr.M.Hemchandra, learned senior counsel appearing for some of the private respondents. He further submits that the respondents were also promoted as Nursing Sisters by the order dated 17.12.2016 and, therefore, at this stage their promotion

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should not be disturbed. He also places reliance in the case of Gujarat State Dy. Executive Engineers' Assn Vs State of Gujarat &Ors reported in 1994 Supp (2) SCC 591 and Budhi Nath Chaudhary & Ors Vs Abahi Kumar & Ors reported in (2001) 3 SCC 328.

[13] In reply, Mr.Kh.Tarunkumar, learned counsel for the petitioner submits that the respondents have failed to show the Combined Merit List in the present case and the same is substantiated by the reply to the query made by the husband of the petitioner in his RTI application which is annexed to the Reply Affidavit of the petitioner to the affidavit in opposition of the respondent Nos.1 and 2 as Annexure R/1. This would amply make it clear that the appointment made by the order dated 16.12.2006 was not on merit basis. He also submits that the DPC proceedings is silent on the Combined Merit List and, therefore, seniority is to be fixed amongst two hundred Staff Nurses appointed by the order dated 16.12.2006 on the basis of the date of birth and places reliance in the case of Jitendra Kumar Singh &AnrVs State of Uttar Pradesh & Ors reported in (2010) 3 SCC 119, DP Das Vs Union of India &Ors: (2011) 2 SCC 115 (supra) and State of Gujarat &Ors reported in (2012) 9 SCC 545.

[14] I have considered the submissions forwarded by the learned counsel for the parties.

[15] At the outset, this Court deems it necessary to bring certain factual positions with regard to the present case in hand.

The petitioner had filed Misc. Appl No.135 of 2018 praying for a direction to restrain the respondents from filling up vacant posts of Nursing Sisters at the Jawaharlal Nehru Institute

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of Medical Sciences (JNIMS) Imphal. On 2.6.2018, this Court in MC (WP(C)) No.135 of 2018 directed the learned GA to produce the file pertaining to the appointment of Staff Nurses in terms of the DPC held from 25.10.2006. As the State respondents were unable to produce the concerned records, this Court on 22.6.2018 passed an order fixing 5.7.2018 for listing the matter again to enable the Director of Health Services to produce the concerned file, failing which the Director of Health Services was directed to remain present in Court on 5.7.2018 and further directed that no DPC shall be made till the said relevant file is produced before this Court by the State Government.

As the concerned file was not traceable, the Director of Health Services, Government of Manipur was present in person before this Court on 5.7.2018 praying for further time to produce the records. However, as the respondents failed to produce the records, this Court on 21.12.2020 directed the Chief Secretary, Government of Manipur to cause an inquiry as to how the concerned file relating to the DPC held on 25.10.2006 for appointment of Staff Nurses is yet to be placed before this Court by the concerned authority. Thereafter, the Deputy Secretary, Health & Family Welfare, filed an affidavit on behalf of the Administrative Secretary on 12.03.2021 stating that the concerned file could not be located by the Directorate of Health Services as the office of the Medical Directorate, Lamphel was shifted from the old building in the eastern side complex to the newly constructed building, northern side of the Directorate complex. The affidavit further reveals that on checking the records of the Administrative Department of Health, the copies of the proceedings of the DPC/Selection Committee for appointment of 200 (two hundred)

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Staff Nurses, which was received for conveying approval of the Government are available in the Secretariat Health Department file No.1/4/2005-M (Pt). It further stated that the total marks obtained by the candidates are not indicated in the Select List of the DPC proceedings but the records of marks obtained by the candidates in the written test are however available. Thereafter, the learned Government Advocate had produced both the records before this Court.

[16] The main consideration before this Court despite several arguments being made by the learned counsel for the parties is whether the DPC/Selection Committee had made its recommendation on merits.

The proceedings of the DPC held w.e.f. 17.10.2006 to 25.10.2006 for filling up of 200 (two hundred) newly created post of Staff Nurse in the Medical Department, has been perused by this Court, which is available in the File No.1/4/2005-M (Pt). A perusal of the same clearly indicates that the DPC after careful examination of the educational qualification, trade certificate including experience in their departments, recommended the two hundred candidates (126-General, 67 Scheduled Tribes and 7- Scheduled Castes) for appointment to the post of Staff Nurse on merit as detailed in Annexure-A appended to the proceedings of the DPC.

[17] This Court has also perused the appointment Order dated 16-12-2006 containing the Annexure wherein, list of candidates for appointment to the post of Staff Nurse (General, ST and SC) are enclosed. A comparison of the list which was recommended on the basis of merit by the DPC and the

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appointment order dated 16.12.2006, clearly indicates that the appointments were made strictly on the recommendation made by the DPC/Selection Committee on merit, even if the term "merit" is not used in the appointment order. Therefore, this Court is of the considered opinion that the appointment order dated 16.12.2006 was made on the basis of merit and, therefore, the contention of learned counsel for the petitioner that the said appointments were not made on the basis of merit fails.

[18] The other contention of learned counsel for the petitioner that the appointments were not made on the basis of common merit list has been considered by this Court. The appointment order dated 16.12.2006 by which the petitioner was also appointed along with the private respondents is not challenged in the present writ petition. Further, this Court having already come to the conclusion that the initial appointment of the petitioner and the private respondents by the Order dated 16-12- 2006 was made on the basis of merit, this ground also fails. [19] This Court has also considered the impugned Order of promotion dated 17th December, 2016 by which 38 (thirty eight) Staff Nurses were promoted to the post of Nursing Sisters, JNIMS. On a consideration of the same, this Court is of the considered opinion that the respondents had promoted the 38 (thirty eight) Staff Nurses to the post of Nursing Sisters, JNIMS strictly on the basis of the Final Seniority List notified by the Notification dated 13th December, 2016 and therefore, warrant no interference.

In the facts and circumstances of what has been discussed herein above, there is no merit in the writ petition and is accordingly dismissed. Consequently, the connected misc applications stands disposed of.

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                            No Cost.

Registry is directed to return the records to Mr. Nepolean, learned GA.

JUDGE Priyojit

KH. JOSHUA Digitally signed by KH.

                      JOSHUA MARING
           MARING     Date: 2022.06.07
                      23:39:20 +05'30'




WP(C) NO.35 OF 2017                                                       (CAV)