Manipur High Court
Dr. N. Surbala Devi vs The State Of Manipur Represented ... on 24 February, 2023
SHAMURAILATPAM SUSHIL Digitally signed by SHAMURAILATPAM
SUSHIL SHARMA
SHARMA Date: 2023.02.24 15:23:07 +05'30'
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IN THE HIGH COURT OF MANIPUR
AT IMPHAL
WP(C) No. 167 of 2022
Dr. N. Surbala Devi, aged about 59 years, W/o Shri
Irengbam Akendro Singh, resident of Haobam Marak
Kangjam Leikai, P.O. Imphal, P.S. Singjamei and District
Imphal West, Manipur - 795001.
... Petitioner
-Versus-
1. The State of Manipur represented by the Additional Chief
Secretary (Health & Family Welfare), Govt. of Manipur,
Manipur Secretariat ,Babuapra, P.O. & P.S. Imphal,
Imphal West District Manipur -- 795001.
2. The Director of Health Services, Manipur, Directorate of
Health Services, Government of Manipur, Lamphelpat,
P.O. & P.S. Lamphel, Imphal West District, Manipur-
795004.
3. Smt. A. Ibeyaima Devi, aged about 64 years, W/o Shri
Takhellambam Loken Singh, resident of Keibung Oinam
Leikai, P.O. Manipur University, P.S. Singjamei
and District Imphal West, Manipur - 795003.
... Respondents
WP(C) No. 173 of 2022
Smt. A. Ibeyaima, aged about 64 years, W/o Shri
Takhellambam Loken Singh, resident of Keibung
Oinam Leikai, P.O. Manipur University, P.S. Singjamei
and District Imphal West, Manipur-795003.
..... Petitioner
WP(C) No.167 of 2022, WP(C) No. 173 of 2022 and WP(C) No. 528 of 2021
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-Versus-
1. The State of Manipur through the Principal
Secretary/Commissioner/ Secretary (Health & Family
Welfare), Govt. of Manipur, New Secretariat Building,
P.O. & P.S. Imphal and District, Imphal West, Manipur
795001.
2. The Special Secretary, Health & Family Welfare, Govt. of
Manipur, New Secretariat Building, P.O. & P.S. Imphal
and District, Imphal West, Manipur-795001.
3. The Director, Health & Family Welfare, Govt. of Manipur,
Lamphelpat, Imphal West District, Manipur-795004.
4. Dr. N. Surbala Devi, aged about 58 years, W/o Shri
Irengbam Akendro Singh, resident of Haobam Marak
Kangjam Leikai, P.O. Imphal, P.S. Singjamei and District
Imphal West, Manipur-795001.
.... Respondents.
WP(C) No. 528 of 2021
Smt. A. Ibeyaima, aged about 64 years, W/o Shri
Takhellambam Loken Singh, resident of Keibung
Oinam Leikai, P.O. Manipur University, P.S. Singjamei
and District Imphal West, Manipur-795003.
..... Petitioner
-Versus-
1. The State of Manipur through the Principal
Secretary/Commissioner/ Secretary (Health & Family
Welfare), Govt. of Manipur, New Secretariat Building,
P.O. & P.S. Imphal and District, Imphal West, Manipur
795001.
WP(C) No.167 of 2022, WP(C) No. 173 of 2022 and WP(C) No. 528 of 2021
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2. The Director, Health & Family Welfare, Govt. of Manipur,
Lamphelpat, Imphal West District, Manipur-795004.
3. Dr. N. Surbala Devi, aged about 58 years, W/o Shri
Irengbam Akendro Singh, resident of Haobam Marak
Kangjam Leikai, P.O. Imphal, P.S. Singjamei and District
Imphal West, Manipur-795001.
4. Smt. M. Shanti Devi, aged about 62 years, W/o Dr. W.
Jatishwar Singh, resident of Sagolband Moirang Leirak,
P.O. & P.S. Imphal, Imphal West District, Manipur.
.... Respondents.
BEFORE
HON'BLE THE ACTING CHIEF JUSTICE MR. M.V. MURALIDARAN
For the Petitioners :: Mr. N. Zequeson, Advocate
For the Respondents :: Mr. S. Nepolean, GA
Mr. Kh. Tarunkumar, Sr. Adv.
Date of Hearing and
reserving Judgment & Order :: 12.01.2023.
Date of Judgment & Order :: 24.02.2023
JUDGMENT AND ORDER
(CAV)
Challenging the impugned order/notice dated 19.4.2021
thereby publishing the seniority list of Associate Professors,
College of Nursing, one Ibeyaima Devi has filed W.P.(C) No.528
of 2021.
WP(C) No.167 of 2022, WP(C) No. 173 of 2022 and WP(C) No. 528 of 2021
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2. Challenging the absorption/appointment of A.
Ibeyaima Devi as Associate Professor in the College of Nursing,
Medical Directorate, Manipur, vide impugned order 1.8.2014
along with the subsequent order dated 30.1.2015 issued by the
Health Department, Government of Manipur, Dr.N.Surbala Devi
has filed W.P.(C) No.167 of 2022.
3. Challenging the order dated 26.2.2022 thereby
ordering Dr.N.Surbala Devi, Associate Professor, College of
Nursing, Medical Directorate, Manipur to hold the post of
Principal, College of Nursing in addition to her normal duties with
effect from 1.3.2022, Ibeyaima Devi has filed W.P.(C) No.173 of
2022.
4. Since all three writ petitions are interlinked with
each other, they were heard together and disposed of by this
common order.
5. For the sake of convenience, the parties are
referred to as per their array in W.P.(C) No.167 of 2022. For
clarity, Dr.N.Surbala Devi is referred as "petitioner" and Ibeyaima
Devi is referred as "third respondent" hereinafter.
Facts
:
WP(C) No.167 of 2022, WP(C) No. 173 of 2022 and WP(C) No. 528 of 2021
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6. The case of the petitioner is that she obtained her
B.Sc. (Nursing) degree from the University of Calcutta in the year
1989 and was initially appointed as Nursing Sister in the Health
Department, Manipur, vide order dated 12.7.1989. In the
meantime, she obtained her M.Sc. (Nursing) from Tamil Nadu Dr.
M.G.R. Medical University, Madras in the year 1996 and the
Health Department, Government of Manipur, vide order dated
3.5.2003, utilized the services of the petitioner as Sister Tutor at
GNM School of Nursing, Lamphel. On the other hand, the third
respondent was initially appointed as Sister Tutor of the Female
Health Worker Training School, Churachandpur on adhoc basis
vide order dated 29.3.1984 and her service was regularized vide
order dated 24.5.1986 and, thereafter, she was transferred to
GNM School of Nursing, Lamphel vide order dated 4.8.1990.
7. In course of time, GNM School of Nursing was
upgraded as College of Nursing in the year 2012 and upon
upgradation, the Health Department issued an order dated
7.9.2012, by which, among others, the third respondent was
utilized as Associate Professor in the College, while the petitioner
was utilized as Lecturer in the College. On 19.4.2013, the
Director of Health Services, submitted a proposal for post
creation, framing of recruitment rules and appointment of
qualified faculty members in the College of Nursing to the
WP(C) No.167 of 2022, WP(C) No. 173 of 2022 and WP(C) No. 528 of 2021
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Principal Secretary, Health and Family Welfare, Government of
Manipur. In the meantime, the Secretary, Indian Nursing
Council, vide letter dated 30.5.2013, informed the Principal of the
College of Nursing the staffing pattern of INC for collegiate
programme, thereby directed to follow the staffing pattern
prescribed by the Council from time to time. The staffing pattern
relaxed by INC till 2012 was extended upto April, 2014 i.e. 2013-
2014 academic year.
8. By cancelling the utilization order dated 7.9.2012,
the Directorate issued an order dated 16.7.2013 wherein the third
respondent continued to be utilized as Associate Professor in the
College and at the same time, after consideration of her
educational qualification and other criteria, the petitioner was
utilized as Associate Professor in the College with effect from
16.7.2013. Thereafter, vide order dated 1.8.2014, the
substantive post of Nursing Sister held by the petitioner and the
substantive post of Sister Tutor held by the third respondent were
re-designated as Associate Professor, College of Nursing and
they were absorbed thereto and in the order dated 1.8.2014, the
name of the petitioner appeared at Serial No.3 and the name of
the third respondent appeared at Serial No.5. Thereafter, the
Health Department issued an order dated 30.1.2015 notifying the
WP(C) No.167 of 2022, WP(C) No. 173 of 2022 and WP(C) No. 528 of 2021
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concurrence of the Department of Personnel, Government of
Manipur to the earlier order dated 1.8.2014.
9. According to the petitioner, the relevant staffing
pattern of INC applicable at the time of issuance of the orders
dated 1.8.2014 and 30.1.2015 was the staffing pattern
communicated by the Secretary, INC vide letter dated 30.5.2013
and the relaxed staffing pattern of INC till 2012 was extended
only upto April, 2014 and the same was no longer applicable
when orders dated 1.8.2014 and 30.1.2015 were issued and also
communicated the applicable staffing pattern for collegiate
programme mentioning the qualifications and experience for the
post of Associate Professor and Assistant Professor.
10. The third respondent obtained M.Sc. (N) degree in
the year 2011 and when she was absorbed as Associate
Professor, College of Nursing, vide order dated 1.8.2014, she
had only three years' experience after M.Sc. (N) and, as such,
she was not all eligible to be appointed as Associate Professor
and she was just merely eligible for appointment to the post of
Assistant Professor. Thus, the absorption/appointment of the
third respondent to the post of Associate Professor in the College
of Nursing, Medical Directorate, Manipur is illegal and void ab-
WP(C) No.167 of 2022, WP(C) No. 173 of 2022 and WP(C) No. 528 of 2021
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initio, as she did not possess the eligibility criteria prescribed by
the INC.
11. The case of the third respondent is that she was
initially appointed as Sister Tutor at the School of GNM under the
Department of Health, Government of Manipur on 24.5.1986. In
the final inter-se seniority list of Sister Tutors, Public Health
Nurses and Public Health Nurse Instructor notified on
30.11.2011, her name appeared at Serial No.4 in respect of the
post of Sister Tutor showing her date of appointment as
24.5.1986 and the date of birth as 1.9.1957. On 7.9.2012, the
petitioner was utilized as Associate Professor in the College of
Nursing which was upgraded from the School of GNM. On
1.8.2014, the service of the petitioner was absorbed as Associate
Professor at the College of Nursing by re-designating her post as
Associate Professor. On 3.9.2020, while publishing the tentative
seniority list of the Associate Professors of the College of
Nursing, her name appeared at Serial No.4. Being unsatisfied,
she submitted an objection to the said tentative seniority list.
However, without considering the objection properly, the
tentative seniority list was finalized on 19.4.2021. Challenging
the same, the third respondent filed W.P.(C) No.528 of 2021.
While the said writ petition was pending, on 26.2.2022, the
petitioner was given the charge of Principal of the above said
WP(C) No.167 of 2022, WP(C) No. 173 of 2022 and WP(C) No. 528 of 2021
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College by the Special Secretary, Health & Family Welfare,
Government of Manipur. Assailing the order dated 26.2.2022,
the third respondent has filed W.P.(C) No.173 of 2022.
12. Resisting the writ petitions, the respondent State
and the Health and Family Welfare Department filed affidavit-in-
opposition stating that as per the letter dated 30.5.2013 of the
INC, the qualification and experience for the post of Associate
Professor, College of Nursing, is M.Sc. (N) with 8 years'
experience after M.Sc. (N) including 5 years teaching
experience. The third respondent at the time of her initial date of
utilization as Faculty Member in the College of Nursing on
7.9.2012, she had only 1 year experience after passing M.Sc.
(N), as she passed M.Sc. (N) only in 2011. Therefore, the third
respondent did not possess the requisite experience for the post
of Associate Professor, College of Nursing prescribed by the INC
at the time of her utilization as Faculty Member.
13. It is stated that even at the time of re-designating
and absorption of the third respondent vide order dated 1.8.2014,
she has not completed 8 years' experience after M.Sc. (N) as
required under the guidelines/instructions of the INC. The matter
relating to fixation of final seniority list of Associate Professor,
College of Nursing was referred to the Department of Personnel,
WP(C) No.167 of 2022, WP(C) No. 173 of 2022 and WP(C) No. 528 of 2021
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Government of Manipur and the Department of Personnel
recommended the petitioner for appointment to the post of
Associate Professor and the inter-se-seniority of Kh. Ratna Devi,
Nandarani Devi, the third respondent and Nalinibala Devi be
fixed as per the Medical Directorate Memorandum dated
3.10.2021. Accordingly, the final seniority list of Associate
Professors, College of Engineering, was notified vide notice
dated 19.4.2021 and, as such, there is no illegality or irregularity
in the seniority list dated 19.4.2021. Though the petitioner was
initially appointed to a non-teaching post of Nursing Sister, she
was utilized as Sister Tutor, a teaching post and, accordingly, her
teaching experience after M.Sc. (N) has been counted for the
purpose of appointment as Associate Professor and fixation of
seniority. The petitioner being senior most Associate Professor
serving in the College of Nursing, she has been allowed to hold
the charge of Principal, College of Nursing, in addition to her
normal duties with effect from 1.3.2022 vide order dated
26.2.2022 and, as such, there is no illegality in the order dated
26.2.2022.
Arguments:
14. Assailing the impugned orders dated 1.8.2014 and
30.1.2015, learned counsel for the petitioner submitted that the
petitioner has been continuously utilized as a teaching faculty as
WP(C) No.167 of 2022, WP(C) No. 173 of 2022 and WP(C) No. 528 of 2021
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Sister Tutor in the GNM School of Nursing since 3.5.2003.
Though the petitioner was initially utilized as Lecturer in the
College of Nursing, vide order dated 7.9.2012, the same has
been cancelled and superseded by the order dated 16.7.2013,
wherein she has been utilized as Associate Professor after due
consideration of her educational qualification, work experience
and teaching experience. He would submit that there is no
difference between the pay scale of the petitioner and the third
respondent prior to their absorption as Associate Professor in the
College vide order dated 1.8.2014.
15. The learned counsel for the petitioner further
submitted that the staffing pattern relaxed by the INC till 2012
was extended upto April, 2014 and at the time of issuance of the
order dated 1.8.2014, the staffing pattern communicated by the
INC was in force and, therefore, the third respondent was not at
all eligible for absorption as Associate Professor. Contrary to the
allegations of the third respondent, the order dated 1.8.2014 was
illegally issued in favour of the third respondent. Further, the
absorption of the third respondent as Associate Professor,
College of Nursing, vide order dated 1.8.2014 read with order
dated 30.1.2015, is patently illegal and void ab-initio. As the third
respondent was at most eligible for the post of Assistant
Professor, a post of Assistant Professor must have been created
WP(C) No.167 of 2022, WP(C) No. 173 of 2022 and WP(C) No. 528 of 2021
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in the College of Nursing or her substantive post must have been
upgraded as Assistant Professor instead of Associate Professor.
16. The learned counsel for the petitioner then
submitted that there is no illegality in the impugned final seniority
list published vide notification dated 19.4.2021. The impugned
final seniority list clearly mentions that the petitioner was the only
person who fulfilled the eligibility criteria prescribed by INC. The
third respondent has nowhere refuted the fact that she did not
fulfill the eligibility criteria laid down in the staffing pattern
communicated by the INC vide letter dated 30.5.2013. Further,
the third respondent was not eligible to be utilized as Associate
Professor in the College of Nursing for the reason that she did
not fulfill the eligibility criteria prescribed by the INC. In fact, the
third respondent did not fulfill the eligibility criteria when the
orders dated 1.8.2014 and 30.1.2015 were issued. On the other
hand, the petitioner was eligible for utilization as Lecturer when
the order dated 7.9.2012 was issued and as Associate Professor
when orders dated 16.7.2013, 1.8.2014 and 30.01.2015 were
issued and the INC has nothing to do with appointments in
Nursing Colleges/Institutions. Therefore, there is no illegality in
placing the petitioner at Serial No.1 in the impugned final
seniority list, which was done after due examination of the
relevant/applicable INC staffing pattern.
WP(C) No.167 of 2022, WP(C) No. 173 of 2022 and WP(C) No. 528 of 2021
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17. Coming to the challenge made to the order dated
1.8.2014 and 30.1.2015 as regard the absorption of the third
respondent as Associate Professor, the learned counsel for the
petitioner argued that the upgradation of the third respondent
who was otherwise not eligible for the post of Associate
Professor is illegal and not permissible in the service
jurisprudence. At most, the third respondent is eligible for the
post of Assistant Professor and, in fact, in the proposal submitted
by the Director of Health Services vide letter dated 19.4.2013,
the third respondent was proposed for absorption as Assistant
Professor in consideration of her qualification and experience.
However, when the impugned order dated 1.8.2014 was issued,
she was illegally absorbed as Associate Professor. Therefore,
the said order is liable to be set aside in respect of the third
respondent.
18. Per contra, the learned counsel for the third
respondent submitted that the acts of the official respondents in
issuing the impugned notice dated 19.4.2021 fixing the seniority
of the third respondent, petitioner as well as other faculty
members of the College of Nursing by placing the name of the
petitioner and one Shanti Devi above the name of the third
respondent by giving reasons according to their choice, are
illegal, unlawful, arbitrary and discriminatory to the extent that
WP(C) No.167 of 2022, WP(C) No. 173 of 2022 and WP(C) No. 528 of 2021
P a g e | 14
they have deprived the third respondent of her fundamental rights
guaranteed by the Constitution of India. The said acts are also
in total violation of the law laid down by the Hon'ble Supreme
Court. Therefore, the official respondents are required to be
directed to rectify the seniority list by placing the name of the third
respondent above the name of the petitioner and Shanti Devi to
meet the ends of justice.
19. Assailing the impugned order dated 26.2.2022, the
learned counsel for the third respondent submitted that pending
W.P.(C) No.528 of 2021 filed by the third respondent challenging
the seniority list dated 19.4.2021, the Special Secretary (Health
and Family Welfare), Government of Manipur, issued an order
dated 26.2.2022, whereby the petitioner, who is not eligible to
hold the post of Principal, was allowed to hold the charge of the
said post in addition to her normal duties with effect from
1.3.2022. The impugned in-charge appointment order dated
26.2.2022 is illegal for the reason that the said order is in total
contradiction to the affidavit-in-opposition of the State
Government filed in W.P.(C) No.637 of 2020, wherein the State
Government has submitted clearly that the utilization period of
the private respondent therein as Lecturer in the College with
effect from 3.5.2003 cannot be treated as teaching experience.
WP(C) No.167 of 2022, WP(C) No. 173 of 2022 and WP(C) No. 528 of 2021
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20. According to the learned counsel for the third
respondent, as per settled law, the Government is not permitted
to take a stand which is contradictory to its own earlier conduct.
He would submit that in view of the stand taken by the
Government in the earlier affidavit-in-opposition, the petitioner is
not at all eligible to hold the post of Principal of the College.
However, by arbitrary exercise of power, the official respondents
have allowed her to hold the charge of Principal of the said
College without any authority of law. The action of the official
respondents also violates the public trust doctrine and that the
period of utilization of the service of the petitioner as Lecturer in
the College shall not be counted as a teaching experience.
Hence, the impugned order dated 26.2.2022 is not at all
sustainable in the eyes of law and the same is liable to be
quashed.
21. In reply, Mr. S. Nepolean, the learned Government
Advocate appearing for the official respondents submitted that
firstly the affidavit-in-opposition filed by the State respondent in
W.P.(C) No.637 of 2020 was prior to the
decision/recommendation of the Department of Personnel in the
matter relating to fixation of final seniority list of Associate
Professor, College of Nursing. Therefore, the final seniority list
of Associate Professor was finalized and published only on
WP(C) No.167 of 2022, WP(C) No. 173 of 2022 and WP(C) No. 528 of 2021
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19.4.2021 i.e. after the decision/recommendation of the
Department of Personnel. Thus, the affidavit-in-opposition filed
by the State respondent in W.P.(C) No.637 of 2020 was through
bona fide mistake, but not intentional. He would submit that the
final seniority list of Associate Professors was notified vide
impugned letter dated 19.4.2021 and, as such, there is no
illegality in it.
22. The learned Government Advocate further
submitted that the College of Nursing was established with effect
from 7.9.2012 by upgrading the erstwhile GNM School and
necessary posts for the College of Nursing were not created
while establishing the College. Therefore, for the purpose of
establishment of the College, the services of nursing personnel
possessing M.Sc. (N) qualification with teaching experience were
utilized as faculty members as per the Government Order dated
7.9.2012. Since there were no separate posts creation for the
Nursing College, the posts substantively held by the incumbent
concerned and other vacant posts in Health Department were re-
designated as Associate Professor and the incumbents were
absorbed on regular basis against the re-designated posts of
Associate Professor as per the approval of the State Cabinet
accorded on 7.7.2014 and with the concurrence of the Finance
WP(C) No.167 of 2022, WP(C) No. 173 of 2022 and WP(C) No. 528 of 2021
P a g e | 17
Department and Department of Personnel vide orders dated
1.8.2014 and 30.1.2015 respectively.
23. Adding further, the learned Government Advocate
submitted that though the third respondent, at the time of
utilization and absorption as Associate Professor, did not have
experience for the required number of years after passing M.Sc.
(N) as prescribed by the INC, her service was absorbed as
Associate Professor as per the approval of the State Cabinet
accorded on 7.7.2014, whereas the petitioner who had
completed her M.Sc. (N) in the year 1995 and had 9 years'
experience after passing M.Sc. (N) as on the date of her initial
utilization as faculty member in the College of Nursing and she
fulfilled the eligibility criteria prescribed by the INC for the post of
Associate Professor. Thus, the petitioner being the senior most
Associate Professor serving in the College of Nursing has been
allowed to hold the charge of Principal, College of Nursing, in
addition to her normal duties with effect form 1.3.2022 vide
impugned order dated 26.2.2022. Therefore, there is no
irregularity and illegality in the said order. Thus, a prayer has
been made to dismiss the writ petitions.
24. This Court considered the rival submissions and
also perused the materials available on record.
WP(C) No.167 of 2022, WP(C) No. 173 of 2022 and WP(C) No. 528 of 2021
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Discussion:
25. There were three challenges made in these writ
petitions. The petitioner challenged the absorption of the third
respondent as Associate Professor alleging that the absorption
is illegal. The third respondent has challenged the seniority
position of the petitioner stating that she is the senior most and
she be placed above the petitioner. The third respondent also
challenged the order of the respondent authorities thereby
allowing the petitioner to hold the post of Principal, College of
Nursing, in addition to her normal duties as Associate Professor.
26. The grievance of the petitioner is that she was
initially appointed as Nursing Sister in the Health Department and
thereafter, the Health Department issued an order dated
3.5.2003 whereby utilizing the service of the petitioner as Sister
Tutor at GNM School of Nursing. On the other hand, the third
respondent, who was initially appointed as Sister Tutor of the
Female Health Worker Training School, Churachandpur, was
transferred and posted at GNM School of Nursing and by the
order dated 7.9.2012. She was initially utilized as Associate
Professor and, subsequently, in supersession of the order dated
7.9.2012, the authorities have issued another order dated
16.7.2013 by which she continued to be utilized as Associate
WP(C) No.167 of 2022, WP(C) No. 173 of 2022 and WP(C) No. 528 of 2021
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Professor of the College of Nursing. At the same time, after due
consideration, the petitioner also came to be utilized as Associate
Professor with effect from 16.7.2013. Thereafter, vide order
dated 1.8.2014, the substantive post of Sister Tutor held by the
third respondent was upgraded as Associate Professor and she
was permanently absorbed thereto. Similarly, the substantive
post of Nursing Sister held by the petitioner was re-designated
as Associate Professor and she was absorbed thereto. In the
order dated 1.8.2014, the name of the petitioner appears at Serial
No.3, while the third respondent's name appears at Serial No.5.
Thereafter, the authorities have issued another order dated
30.1.2015 notifying the concurrence of the Department of
Personnel to the earlier order dated 1.8.2014. According to the
petitioner, the third respondent obtained her M.Sc. (N) degree
only in the year 2011. When she was absorbed as Associate
Professor, she had only three years' experience after M.Sc. (N)
and, as such, the third respondent is not eligible to be appointed
as Associate Professor.
27. On the other hand, it is the plea of the third
respondent that the petitioner has challenged the legality of the
orders dated 1.8.2014 and 30.1.2015 after the delay of 8 years
and, therefore, she is not entitled to maintain W.P.(C) No.167 of
2022. Since the post of Sister Tutor is a teaching post, the
WP(C) No.167 of 2022, WP(C) No. 173 of 2022 and WP(C) No. 528 of 2021
P a g e | 20
teaching experience of the third respondent has to be counted
from the date of her initial appointment i.e. 24.5.1986. The third
respondent possessed the requisite criteria prescribed by the
INC guidelines, 2012 and, this Court has already declared one
Nalinibala Devi eligible for absorption to the post of Vice Principal
and Principal of the College of Nursing, Medical Directorate,
Imphal and the said Nalinibala Devi passed her M.Sc. (N) degree
in December, 2012 and the third respondent passed her M.Sc.
(N) in the year 2011. In view of the order dated 12.5.2017 passed
in W.P.(C) No.512 of 2015, the third respondent is quite eligible
for absorption to the post of Associate Professor and even for
higher post. There was no illegality in the absorption of the third
respondent to the post of Associate Professor.
28. It is the say of the respondent State that the third
respondent at the time of her initial date of utilization as Faculty
Member in the College of Nursing, she had only one year
experience after passing M.Sc. (N) as she passed M.Sc. (N) in
the year 2011. Therefore, the third respondent did not possess
the requisite experience for the post of Associate Professor
prescribed by the INC at the time of her utilization as Faculty
Member. Even at the time of re-designation and absorption of
the third respondent vide order dated 1.8.2014, she has not
completed 8 years' experience after M.Sc. (N) as required under
WP(C) No.167 of 2022, WP(C) No. 173 of 2022 and WP(C) No. 528 of 2021
P a g e | 21
the guidelines issued by the INC. On the other hand, the
petitioner, though was initially appointed to a non-teaching post
of Nursing Sister, her service has been utilized as Sister Tutor, a
teaching post since 2003 and, as such, the petitioner has the
teaching experience after M.Sc. (N).
29. It is an admitted fact that while establishing the
College of Nursing, the required posts were not created.
Therefore, for the purpose of establishment of the College of
Nursing, the services of nursing personnel possessing M.Sc. (N)
qualification with teaching experience were utilized as Faculty
Members. The qualification and experience for the post of
Associate Professor, College of Nursing is M.Sc. (N) with 8 years'
experience after M.Sc. (N), including 5 years teaching
experience.
30. The contention of the third respondent that the
petitioner does not have the teaching experience of 5 years at
the time of utilization as Faculty Member in the College of
Nursing as she was holding the post of Nursing Sister a non-
teaching post has no basis. Similarly, the argument of the
learned counsel for the third respondent that the stand taken by
the respondent Government in favour of the petitioner by
counting her utilization period as Sister Tutor is highly
WP(C) No.167 of 2022, WP(C) No. 173 of 2022 and WP(C) No. 528 of 2021
P a g e | 22
condemnable and not sustainable in the eyes of law has also no
basis. Further, the decision of the Hon'ble Supreme Court in the
case of Union Territory of Chandigarh v. Rajesh Kumar
Basandhi, (2003) 11 SCC 549 relied upon by the learned counsel
for the third respondent is not applicable to this case in the given
facts and circumstances. As rightly argued by learned counsel
for the petitioner, the third respondent, who had obtained her
M.Sc. (N) in the year 2011, would not be eligible for utilization as
teaching Faculty Member in the College of Nursing, as she had
only one year experience after passing M.Sc. (N).
31. As could be seen from the records, the petitioner
was holding the post of Nursing Sister, a non-teaching post,
however, she has been ordered to work as Sister Tutor, a
teaching post at GNM School of Nursing, Lamphel vide order
dated 3.5.2003. This fact has not been disputed by the third
respondent nor any contra document has been produced by the
third respondent in support her claim. Thus, it is clear from the
materials produced by both sides that the petitioner was working
in a teaching post since 2003 and the teaching experience
obtained by her has to be counted, which the respondent
authorities have rightly done in this case and after fixing seniority
when the final seniority list of Associate Professor, College of
WP(C) No.167 of 2022, WP(C) No. 173 of 2022 and WP(C) No. 528 of 2021
P a g e | 23
Nursing was forwarded to the Department of Personnel, it has
recommended the petitioner at Serial No.1.
32. At this juncture, the learned counsel for the
respondent Shanti Devi submitted that the rules, norms for
fixation of seniority amongst similar cadres of the employees
depends upon the nature of services and Department concerned
in which the Government has fixed from time to time. The private
respondents have no capacity to frame rules and regulations, but
every employee has to follow for smooth functioning of the duty.
This Court finds some force in the submission made by the
learned counsel for the respondent Shanti Devi.
33. When the third respondent contended that due care
has not been taken while finalizing the seniority, it is her duty to
prove the same. On the other hand, when this Court peruses the
order/notice dated 19.4.2021, it has been clearly mentioned the
reasoning for placing the petitioner at Serial No.1. In other
words, it has to be held that while issuing the order/notice dated
19.4.2021 sufficient reasoning was given by the concerned
authority. This Court finds any fault in the order/notice dated
19.4.2021. The competent authority has considered the ground
reality and has taken due note of the fact that the petitioner has
been rendering service as a teaching faculty i.e. Sister Tutor with
WP(C) No.167 of 2022, WP(C) No. 173 of 2022 and WP(C) No. 528 of 2021
P a g e | 24
effect from 3.5.2003 in GNM School of Nursing at the time of her
utilization as well as absorption as Associate Professor.
34. It is apposite to mention that the qualification and
experience for the post of Associate Professor, College of
Nursing is 8 years' experience after M.Sc. (N) including 5 years
teaching experience, which the third respondent does not fulfill.
Therefore, there is no illegality in placing the petitioner at Serial
No.1 in the impugned final seniority list dated 19.4.2021 and
there is also no violation of any fundamental rights of the third
respondent or any law laid down by the Hon'ble Supreme Court.
The writ petition at the hands of the third respondent challenging
the impugned final seniority is misconceived one. Therefore, the
said writ petition is liable to be dismissed.
35. As far as the challenge made by the petitioner to the
absorption of the third respondent as Associate Professor,
College of Nursing, is concerned, the learned Government
Advocate contended that it is not open to the respondent State
to commit any illegality to appoint an ineligible and unqualified
candidate as Associate Professor in the College of Nursing in
blatant violation of the guidelines issued by INC. It is also the
say of the learned Government Advocate that only after following
WP(C) No.167 of 2022, WP(C) No. 173 of 2022 and WP(C) No. 528 of 2021
P a g e | 25
the guidelines issued by the INC, the third respondent and the
petitioner have been absorbed in the post of Associate Professor.
36. The learned Government Advocate further
submitted that the writ petition, being W.P.(C) No.512 of 2015,
was primarily related to the post of Professor-cum-Vice Principal
of the College of Nursing, wherein this Court, vide order dated
12.5.2017, quashed the appointment of one Nalini Devi as
Professor-cum-Vice Principal of the College and directed the
respondent State to consider the petitioner therein, namely
Nalinibala Devi for appointment by absorption as Vice-Principal
or any equivalent post in the cadre of the Principal. As against
the order dated 12.5.2017, W.A.Nos.37 and 38 of 2017 have
been preferred by the State and Nalini Devi, who is respondent
in the writ petition. The position now is both Nalini Devi as well
as Nalinibala Devi have retired on attaining the age of
superannuation.
37. The petitioner by filing W.P.(C) No.167 of 2022
contended that the absorption/appointment of the third
respondent to the post of Associate Professor in the College of
Nursing is illegal and void ab-initio, as she did not possess the
eligibility criteria prescribed by the INC. Further contention of the
petitioner is that the upgradation of the third respondent along
WP(C) No.167 of 2022, WP(C) No. 173 of 2022 and WP(C) No. 528 of 2021
P a g e | 26
with the post which she is not eligible is not permissible in service
jurisprudence. Hence, the absorption of the third respondent as
Associate Professor vide order dated 1.8.2014 read with the
order dated 30.1.2015 is patently illegal and that at most, the third
respondent is eligible for the post of Assistant Professor only.
38. On a perusal of the order dated 12.5.2017 passed
in W.P.(C) No.512 of 2015, it is seen that though the third
respondent and the petitioner herein were made as respondents
in the aforesaid writ petition, the issue of eligibility of the third
respondent for appointment by absorption as Associate
Professor was not considered by this Court as the same did not
arise in the said writ petition. Moreover, in the said writ petition,
it was clearly recorded that the absorption of the teaching
faculties to the College of Nursing was done in terms of INC
guidelines, 2012 and the petitioner did not challenge the said
stand of the Government which was recorded in the said order
and she has already waived her rights and now after a delay of
about 8 years, the petitioner cannot take a u-turn and contend
that the third respondent is not eligible to be absorbed to the post
of Associate Professor of the Nursing College. The reason for
such a long delay of 8 years has not been properly explained by
the petitioner.
WP(C) No.167 of 2022, WP(C) No. 173 of 2022 and WP(C) No. 528 of 2021
P a g e | 27
39. The argument of learned counsel for the petitioner
that even though the orders impugned in W.P.(C) No.167 of 2022
have been passed almost 7-8 years ago and for the reason that
the grievance of the petitioner against them and the cause of
action for filing the said writ petition as well as her locus standi
arose only in the month of January, 2022 cannot be accepted.
The said excuse pleaded by the petitioner is only for the purpose
of filing the writ petition and the same is otherwise legally not
sustainable.
40. At this juncture, it is to be pointed out that the law is
well settled that a thing which cannot be done directly shall not
be done indirectly.
41. Admittedly, the petitioner has not challenged the
order dated 12.7.2015 passed in W.P.(C) No.512 of 2015 though
she was made as party. Therefore, it is to be presumed that the
petitioner is not aggrieved with the order/findings recorded
against her in the said writ petition. After sleeping over her rights
for about 8 years, the petitioner cannot challenge the legality of
the order dated 1.8.2014 and 30.1.2015 by taking several
grounds, which she did not raise in W.P.(C) No.512 of 2015.
Therefore, on the sole ground itself, the writ petition, being
W.P.(C) No.167 of 2022, filed by the petitioner challenging the
WP(C) No.167 of 2022, WP(C) No. 173 of 2022 and WP(C) No. 528 of 2021
P a g e | 28
impugned orders dated 1.8.2014 and 30.1.2015 is liable to be
dismissed. On merits also, the petitioner has no case. In view
of the discussions held supra, W.P.(C) No.167 of 2022 filed by
the petitioner challenging the order dated 1.8.2014 and
30.1.2015 is not maintainable and the respondent State has
rightly considered the position of the third respondent for
absorption and even for the petitioner and issued the aforesaid
orders. Therefore, this Court cannot find any fault in the orders
dated 1.8.2014 and 30.1.2015.
42. The third respondent, by filing W.P.(C) No.173 of
2022, has challenged the appointment of the petitioner to hold
the post of Principal of the College of Nursing. She claimed that
she is the only eligible person to hold such post as she is the
senior most Associate Professor.
43. According to the third respondent, the Government
cannot permit the petitioner to hold the charge of Principal, as it
will amount to taking a contradictory stand than taken in W.P.(C)
No.637 of 2020, which is not permissible in law.
44. In reply, the learned Government Advocate
submitted that the stand taken through the affidavit-in-opposition
filed in W.P.(C) No.637 of 2020 on 26.2.2021 was prior to the
decision of the Department of Personnel in the matter relating to
WP(C) No.167 of 2022, WP(C) No. 173 of 2022 and WP(C) No. 528 of 2021
P a g e | 29
fixation of final seniority list of Associate Professor, College of
Nursing and the final seniority list of the Associate Professor was
finalized and published only on 19.4.2021 i.e. after the decision
of the Department of Personnel and, therefore, the said affidavit-
in-opposition filed by the respondent State in W.P.(C) No.637 of
2020 was through a bona fide mistake, but not intentional.
45. The learned counsel for the petitioner submitted
that there is no illegality in the order dated 26.2.2022, as the
same has been issued on the basis of the final seniority list
published vide notice dated 19.4.2021, wherein the authority
concerned has recorded reasoning for placing the third
respondent as well as the petitioner at appropriate places.
46. Considering the overall submissions of the learned
counsel for the third respondent, petitioner as well as the learned
Government Advocate, it is clear that the third respondent has
neither challenged the orders dated 3.5.2003, 16.7.2003 and
7.9.2012 for utilization of service of the petitioner as teaching
faculty nor the absorption orders dated 1.8.2014 and 30.1.2015.
Therefore, in the absence of any challenge to the legality of the
absorption/utilization orders of the petitioner, the third
respondent cannot raise any issue at this stage qua counting of
the utilization period of the petitioner as teaching experience in
WP(C) No.167 of 2022, WP(C) No. 173 of 2022 and WP(C) No. 528 of 2021
P a g e | 30
W.P.(C) No.173 of 2022. Moreover, this Court, in the earlier
paragraphs of this order, held that there is no illegality in the final
seniority dated 19.4.2021 which is impugned in W.P.(C) No.528
of 2021 filed by the third respondent.
47. The impugned order dated 26.2.2022 reads thus:
"No.MED-1601/20/2021-HS-HEALTH:
Whereas Smt. N.Nalinibala Devi, Associate
Professor who is holding charge of
Principal, College of Nursing, Medical
Directorate, Manipur is retiring on attaining
the age of superannuation w.e.f. 28th
February, 2022 (AN).
2. Now, therefore, the Governor of Manipur
is pleased to order that Dr.N.Surbala Devi,
Associate Professor, College of Nursing,
Medical Directorate, Manipur shall hold the
charge of Principal, College of Nursing,
Medical Directorate, Manipur in addition to
her normal duties w.e.f. 1st March, 2022.
3. This is subject to outcome of the ongoing
Writ Petitions being W.P.(C) No.394 of
2021 and W.P.(C) No.528 of 2021 before
the Hon'ble High Court of Manipur and any
other connected Court cases."
48. It is reiterated that though the third respondent at
the time of utilization and absorption as Associate Professor did
not have experience of the required number of years after
WP(C) No.167 of 2022, WP(C) No. 173 of 2022 and WP(C) No. 528 of 2021
P a g e | 31
passing M.Sc. (N) as prescribed by the INC, her service was
absorbed as Associate Professor as approved by the State
Cabinet dated 7.7.2014. Whereas the petitioner, who had
completed her M.Sc. (N) in the year 1995, had 9 years of
experience after passing M.Sc. (N) as on the date of her initial
utilization as Faculty Member in the College of Nursing and she
had fulfilled the eligibility criteria prescribed by the INC for the
post of Associate Professor. Further, as discussed above,
though the petitioner was initially appointed to a non-teaching
post of Nursing Sister, she was utilized as Sister Tutor, a
teaching post and accordingly, her teaching experience after
M.Sc. (N) has been counted for the purpose of appointment as
Associate Professor and fixation of the seniority. Since the
petitioner being a senior most Associate Professor serving in the
College of Nursing, she has been allowed to hold the charge of
Principal, College of Nursing, Medical Directorate, Manipur, in
addition to her normal duties with effect from 1.3.2022 vide the
impugned order dated 26.2.2022. This Court finds no irregularity
or illegality in the impugned order dated 26.2.2022 and on the
other hand, the grounds raised by the third respondent to
challenge the said order are untenable. Resultantly, W.P.(C)
No.173 of 2022 filed by the third respondent fails. On overall
analysis, the acts done by the respondent authorities cannot be
WP(C) No.167 of 2022, WP(C) No. 173 of 2022 and WP(C) No. 528 of 2021
P a g e | 32
faulted and they have acted only in accordance with law.
Therefore, the challenges made by the third respondent and the
petitioner in these writ proceedings are not sustainable in the
eyes of law.
49. For all the reasons stated above the writ petitions
filed by the third respondent and the petitioner fail. Accordingly,
W.P.(C) No.528 of 2021, 173 of 2022 and 167 of 2022 are
dismissed. There will be no order as to costs.
ACTING CHIEF JUSTICE
FR/NFR
Sushil
WP(C) No.167 of 2022, WP(C) No. 173 of 2022 and WP(C) No. 528 of 2021
