K.H. Robindro Singh and Others vs State of Manipur and Others

P.G. Agarwal, J.—The three writ petitions namely; W.P.(C) No. 1449/2000, W.P.(C) No. 1538/2000 and W.P.(C) No. 38/2001 are disposed of by this common judgment and order as they involve common questions of law and facts.

On the requisition of the State Government of Manipur, the Manipur Public Service Commission vide notification dated 14.07.1997 invited applications for recruitment to the 175 posts of Junior Medical Officer and 20 posts of Dental Surgeons in Grade-IV of Manipur Health Service. The MPSC, in short Commission, after conducting necessary selection process recommended name of 175 candidates for Jr. Medical Officer and 20 names for Dental Surgeons. The writ petitioners who are all qualified Medical Graduates alongwith others are the selected candidates whose names appeared in the select list. They have prayed for a direction to the State Government to appoint them against the existing vacancies as per recommendation of the Commission. They also apprehend that the validity of selection list may be allowed to expire to deprive them from appointment.

Before proceeding further, it will be proper to detail certain facts, which are not in dispute. Recruitment in Grade-IV in Manipur Health Service (M.H.S.) is to be made by direct recruitment through Commission. During 1996 the Commission was not functioning for absence of Chairman. Hence without consulting the Commission, the State Government vide order dated 11.03.1996 appointed 125 Medical Officers and 21 Dental Surgeons on adhoc basis. The said appointments were challenged by unemployed Medical Graduates in C.R. Nos. 409/96 and 456/97. The Court directed the State to fill up the vacancies in M.H.S. through Commission as per Rules and not to extend the terms of adhoc appointees, who feeling aggrieved, preferred WA No. 51/1997. The said appeal was dismissed affirming the order in Civil Rule. The State Government, thereafter, issued the requisition and the selection was made by the Commission, though not without intervention of this Court.

On the other hand, the adhoc appointees by forming as Association, approached this Court in CR No. 1222/1998 for regularisation of their services. On the basis of order passed by the learned Single Judge, the Government regularised the service of the adhoc appointees. However, in WA No. 178/1998, 4/1999, 8/1999 and 9/1999, Division Bench of this Court set aside the judgment of the learned Single Judge. The matter went up to the Supreme Court in Civil Appeal Nos. 5695, 5697 - 5700, 5701 - 5704, 5705 - 5708 of 1999. During the pendency of these appeals, the State Government amended the M.H.S. Rules in order to regularise the adhoc appointments. Without expressing any opinion about the legality of the amended Rules, the Civil Appeals were disposed of on 01.10.1999 with certain observations, to which we will revert later on. In the meantime, the validity of amended rules have been challenged in WPC No. 1395 of 1999 and by an interim order, the amended provisions have been stayed. In these writ petitions we are not concerned with the question of regularisation of adhoc appointees and as such, it will be proper not to discuss and make any observation in the matter of regularisation.

There is no dispute at the Bar that the Commission had recommended the names of 175 candidates for the post of Jr. Medical Officer and 20 candidates for the post of Dental Surgeons. The selection was made on the basis of requisition of State Government and the Commission is the competent authority to make the recommendations as per M.H.S. Rules as they existed and exists as on today. Annexure A/2 is the copy of the notification dated 3.8.2000 making final recommendation by the Commission. The learned senior counsel for the writ petitioner Mr. Ashok Potsangbam has submitted that the selection was made in view of the direction issued by the Court in C.R. 409/96 and WA No. 51/97 to the State Government to fill up the posts as per M.H.S. Rules through Commission. As the said decisions were not challenged by State Government, they may be directed to comply with the directions by appointing the selected candidates. It is further stated that in case no direction is given the selection list may be allowed by the State to expire. Once the petitioners have approached this Court during the lifetime of a select list, the expiry of the period can not be taken as a plea. At this stage, the ld. A.G. Manipur has fairly submitted the State has no objection, whatsoever, if the validity of the list is extended by the Court. The list will remain valid till 1st week of August, 2001 and as such, the above matter need not detain us further. The Ld. AG has further submitted that the Government has filed their counter affidavit in WPC No. 38/2000 only but this may be treated as the pleading/stand of the State Government in all the three writ petitions.

The case of the respondent State is that due to acute financial constraint/crunch, Government has taken a policy decision to impose a ban on direct recruitment and they have also signed a Memorandum of Understanding on 01.04.1999 with Central Government for imposing complete ban for improving financial position of the State. The Government has also constituted a Committee for the purpose. In para 5 of the affidavit it is stated that

''''Necessary steps will be taken as per permission of existing rules and policy decision of the Government taken from time to time in this regard after the ban is lifted."

It is contended by the learned AG that imposition of ban on recruitment to maintain fiscal discipline is a policy decision of the State Government and as such, court should not give directions. The learned AG has placed reliance of the decisions of the Apex Court in the case of Tech. Executive (Anti Pollution) Welfare Association v. Commission of Transport Department and Anr. reported in (1997) 9 SSC 38 and observation of this Court in the case of Ibrahimali and Others Vs. State of Assam and Others, .

Mr. Ashok Potsangbam, learned senior counsel for the petitioner has intervened to submit that ban is aploy adopted by the State Government to appoint persons of their choice on adhoc basis and as many as 2507 appointments were made as admitted by the State Government on the floor of the legislative Assembly. There is no denying of the fact that during the period of ban, appointments in this or that form are being made. There is another aspect of the matter. The Memorandum of Understanding with Union of India was signed by the Manipur Government on 19.04.1999. The ban was imposed on 6.11.1999 vide Annexure-C/4. It is therefore submitted in view of the order passed by the Apex Court in Civil Appeal No. 5695/99 of 1.10.1999 and undertaking given by the State Government of Manipur, the subsequent ban will not apply in the present case. Feebly, it is also contended that ban does not apply to the Court''s order. We may reproduce the undertaking/observations of the Apex Court in the order dated 1.10.1999. The relevant portion reads as follows :

We also noticed from the affidavit filed on behalf of the State of Manipur that so far as the advertisement that was issued on 14.07.1997 indicating the number of vacancies in Manipur Health Service Grade - IV, all those posts advertised will be filled only by the persons who have appeared before the Public Service Commission, the results of which has not been declared because of the interim direction of this Court in some other cases. In view of the aforesaid statement of the State of Manipur, the private respondents, who claims to be the applicants before the Public Service Commission, Manipur cannot possibly have any grievance inasmuch as the Government itself had undertaken that there will be no difficulty in appointing all the persons in respect of which the advertisement had been issued as there has been an increase in the cadre in the meanwhile.

Shri I. Lalitkumar, learned counsel for the writ petitioner has submitted that the above undertaking of the State Government amounts to promissory estoppel and the State now cannot go back on its words or refuse to act on the plea of their own subsequent action. Learned counsel has also referred to Article 144 of the Constitution which provides that all authorities Civil and Judicial, in the territory of India shall act in aid of the Supreme Court.

It may also be noted here that the State of Manipur filed an application IA NO. 1-14 of 17.11.1999 seeking certain clarifications from the Apex Court in respect of order dated 1.10.1999, but in the said application it was nowhere stated that the undertaking cannot be honoured because of ban imposed on 6.11.1999. The I.A. was summarily rejected by the Apex Court.

In view of the undertaking given before the Hon''ble Supreme Court, the State Government finds itself in a difficult situation, which was of its own making. Resorting to adhocism or failure to act decisively has led to this impasse. In order to retrieve the situation, ld. Advocate General has submitted that no time limit was suggested or offered by the Government and even the Apex Court in order dated 1.10.1999 has not laid down any time limit for making the appointments. Hence the State Government is not required to make the appointment immediately. Necessary exercise will be made as and when the ban is lifted considering the financial health of the State. These are no doubt fond hopes, but this Court cannot be oblivious of the misery, stress and anxiety of writ petitioners and other selected candidates. They are all brilliant students having opted for a career in Medicine to serve the mankind. For last four years, they are running from pillar to post to get a job. On numerable occasions, they had to approach this Court either as petitioner or respondent and even had to knock the door of the Apex Court - but to what effect. Job is still being promised - lest promises would have been suffice to survive in this world of today. Moreover, litigation, now a days, has become a costly affair and only the effluents can indulge in such pastimes - The unemployed doctors can ill afford litigation after litigation in the face of wavering state actions. Frustrations of all shorts might have creeped in Counsel ld. Bipinchandra Sharma has submitted that most of the adhoc appointments had participated in the Selection process along with the writ petitioner/selected candidates, but those who were successful are still rotting but the unsuccessful ones are allowed to continue.

It may be noticed that 54 adhoc appointees successfully competed the selection process and their names appear in Select List of 175 candidates. Thus the State Government is required to take effective steps for accommodating remaining 121 candidates only.

A submission has also been made that Health Service is an "essential service" under the Manipur Essential Service Maintenance Act and as such, the State Government is duty bound to keep it running smoothly. Against the Cadre strength of 302+, at present there is a clear vacancy of 160 posts, against which the Government is required to appoint 121 persons only. Quoting from their records, learned counsel for the petitioners has submitted that there is acute shortage of Doctors in the Medical Institutions in rural and hill areas and the people are suffering in absence of basic medical facilities. People have ever resorted to agitation, road blockade and other forms of protests.

It is well known that empanelment in select list does not give any indefeasible right to appointment, but this is not a simple case of empanelment only. There are Court directions and undertaking given by the respondents State before the Court.

In view of the aforesaid and considering all aspects of the matter, I am of the view that the State of Manipur is duty bound to provide appointment to the selected candidates in order of merit/performance given by the Commission. There are existing vacancies against which, they can be appointed. Keeping in mind the financial constraint, some iceway is given to the respondent State by allowing them time to make the appointments, which may be done it so desired by the respondent, in phased manner. The process shall however to be completed on or before 22nd August, 2001.

All the three writ petitions stands disposed of with the direction to State of Manipur to make appointments of the regularly selected candidates within the time frame. No costs.

Heard Shri Ashok Potsangbam, Sr. Advocate, Shri I. Lalitkumar and Shri K. Bipinchandra Sharma, for the petitioner and, Shri T. Nandakumar, Advocate General, Manipur for the respondents.