State of Manipur and Others vs Dr. K. Surjit and Others

R.S. Mongia, C.J.—This judgment and order of ours will dispose of four writ appeals, namely W.A. Nos. 484/2001,493/2001, 491/2001 and 492/2001 and three writ petitions, namely, WP(C) Nos. 1808/2001, 1810/2001 and 1826/2001 (of Imphal Bench). The first two writ appeals, viz., W.A. Nos. 484/2001 and 493/2001, have been filed by the State of Manipur against the judgment of the learned Single Judge dated 30.11.2001, in WP(C) Nos. 1704/2001 and 1705/2001, and the latter two writ appeals, viz., WA Nos. 491/2001 and 492/2001, have been filed by those persons who were selected for the posts of Junior Medical Officer in Grade IV of Manipur Health Service, pursuant to the advertisement, dated 14.7.97. The Appellants in the latter two appeals were not the parties in the writ petitions. The above three writ petitions have been filed by the ad-hoc Junior Medical Officers and Dental Surgeons Grade IV, who have prayed for the same relief as has been granted by the learned Single Judge to the writ Petitioners vide the impugned judgment.

The facts giving rise to these appeals may be noticed. As many as 146 persons (i.e., 125 Junior Medical Officers and 21 Dental Surgeons) including the writ Petitioners in the three writ petitions, namely, WP(C) Nos. 1808/2001, 1810/2001 and 1826/2001, as well as in the writ petitions which have been disposed of by the learned Single Judge, were appointed to the posts of Junior Medical Officers/Dental Surgeons in Grade IV in the Manipur Health Service (for short, MHS) for a period of six months. Letters of appointment to these ad-hoc appointees were issued between 8th February, 1996 and 12th February, 1997. This was because at the relevant time the Manipur Public Service Commission (for short, MPSC) was defunct. The Manipur Government had invited applications for filling up the posts of Junior Health Officers/Dental Surgeons in Grade IV of MHS on ad-hoc basis. The candidates who had applied faced a screening committee and on the recommendation of the screening committee constituted by the Government, ad-hoc appointees were given appointment, of course, for a period of six months initially, which period had been extended from time to time till the impugned order of termination of their services was passed on 15.10.2001. This order of termination has been made the subject matter of challenge-in the present writ petitions, as also was made the subject matter of challenge in the writ petitions disposed of by the learned Single Judge, against which the writ appeals have been filed.

While the writ Petitioners were working on ad-hoc basis, a writ petition, namely, Civil Rule No. 409 of 1996, was filed in this Court for issuance of writ in the nature of mandamus directing the Respondent State Government to fill in the posts in question on regular basis through the MPSC instead of allowing the adhoc appointees to continue. Learned Single Judge of this Court, vide judgment and order dated 14.3.97 directed that the posts be advertised and be filled up according to the Manipur Health Service Rules, 1982 through the MPSC and the ad-hoc appointees be not given any further extension. Appeal by the adhoc appointees against the aforesaid judgment and order (Writ Appeal No. 51 of 1997) was dismissed on 5.5.97. Copies of the learned Single Judge''s judgment and of the appellate Court have been annexed as Annexure-X/3 and Annexure-X/4, with Writ Appeal No. 484/2001.

A learned Single Judge passed an order allowing the State Government to give extension to the ad-hoc appointees for Anr. three months and directed that the posts be filled up through regular process under the rules on the recommendation of the MPSC. within the said period. An advertisement was issued on 14.7.97 for filling up 175 posts of Junior Medical Officer and 20 posts of Dental Surgeon, through competitive examination. The ad-hoc appointees, feeling aggrieved by the advertisement, through their association, moved this Court by filing Civil Rule No. 753 of 1997, and some of them also filed Civil Rules Nos. 809/1997 and 456/1997. It was, inter alia, pleaded that before regularisation of the ad-hoc appointees, the State should not go ahead with the selection process for direct recruitment against the posts held by the ad-hoc appointees. However, vide judgment of the learned Single Judge, dated 20.3.98, the learned Single Judge dismissed the writ petitions and allowed the MPSC to go ahead with the selection process pursuant to the advertisement dated 14.7.97. The ad-hoc appointees were also allowed to take part in the process of selection by relaxing their age.

We are told that out of 125 ad-hoc appointees, 11 of them have already left the service or have died. Out of the remaining 114, 112 ad-hoc appointees applied for the posts of Junior Medical Officer/Dental Surgeon. Further, as per the learned Advocate General, Manipur, out of the 112 applicants from amongst the ad-hoc appointees 57 already stand selected for the posts of Junior Medical Officer and 9 for the posts of Dental Surgeons, the result of which was communicated to the State Government on 16.8.2000. Out of the selected candidates, 94 candidates as on today have since been given appointment, which include 34 ad-hoc appointees, who were duly selected.

Coming back to the narration of facts, it may be observed here that against the judgment of the learned Single Judge, dated 20.3.98, in Civil Rule No. 753/1998, an appeal was preferred by the State (Writ Appeal No. 51 of 1998), which was also dismissed by the Division Bench on 8.5.98.

It seems that the State had the intention to regularise the services of the ad-hoc appointees and with that end in view, Office Memorandum dated 19.8.98 was issued by the State Government, which reads as under:

Government of Manipur Department of Personnel & Administrative Reforms (Personal Division) ------------ Office Memorandum Imphal, the 19th August, 1998.

No. 14/2/98-Adhoc/DP: The undersigned is directed to say that the matter regarding laying down a State policy for regularisation of direct recruit adhoc employees has been under consideration of the State Government. After careful consideration, it has been decided that the regularisation of ad-hoc employees shall be on the following terms and conditions:

Class-I and Class-II direct recruit adhoc employees who were appointed during the period from 8.2.96 to 12.2.97 under DP''s O.M. dated 8.2.96, i.e., after inviting applications from eligible candidates through local newspapers and radio and on'' the recommendation of the Screening Committee constituted under the O.M. dated 8.2.96, and who continue to hold the posts held by them with effect from the dates of their initial adhoc appointment on the recommendation of the Screening Committee/Selection Committee if such order of regularisation does not contravene any Court orders/directives. The Screening Committee/Selection Committee for the purpose of the regularisation shall consist of (i) Chief Secretary, (ii) Principal Secretary/Commissioner/Secretary of the Department concerned, (iii) Head of Department concerned and (iv) a subject expert, wherever necessary.

Class-I and Class-II direct recruit ad-hoc employees who were appointed prior to 8.2.96 but continue to hold the posts on ad-hoc basis till date due to one reason or the other may also be regularised subject to verification of their eligibility and suitability for appointment to the posts and availability of vacancies for their accommodation by a Screening Committee/Selection Committee consisting of (1) Chief Secretary, (ii) Principal Secretary/Commissioner/Secretary of the Department concerned, (iii) Head of Department concerned and (iv) a subject expert, wherever necessary, if such order of regularisation does not contravene any Court orders/directives.

The regularisation of Class-I and Class-II ad-hoc employees as detailed in para 1 and 2 above is exempted from consultation with the MPSC and a notification for amendment of the MPSC (Exemption from Consultation) Regulations, 1972 to this effect is being issued separately.

The process of regularisation of adhoc appointments as indicated above should be completed by 31.12.1998. Ad-hoc employees who do not fulfill the conditions specified above for regularisation of their appointment should be released immediately on expiry of their current term of ad-hoc appointment and no request for further extension of their term of ad-hoc appointment should be entertained unless such extension is necessary to comply with any Court orders/directives.

While regularising the cases, the relevant constitutional requirements of filling up vacancies by Scheduled Castes, Scheduled Tribes and OBC candidates should be followed in strict terms.

Sd/-19.8.98 (N. Angou Singh) Deputy Secretary to the Governor of Manipur.

The ad-hoc appointees filed Civil Rule Nos. 1222 of 1998 and 1226 of 1998 seeking a writ of mandamus for directing regularisation of their services pursuant to the aforesaid Office Memorandum dated 19.8.98 and for staying the process undertaken by the MPSC for direct recruitment. A learned Single Judge, vide judgment dated 7.12.98, allowed the writ petitions and gave the following directions:

Judicial propriety and judicial discipline is to be always observed and protected. Over and above, these Petitioners'' cases are covered up by the said two Office Memorandums of 19.8.98 as discussed above. Considering the existing facts and circumstances of the case and also after proper application of my mind in this matter, I direct the State Respondents to consider the cases of the writ Petitioners in these two Civil Rules in terms of the said Office Memorandum dated 19.8.98. Thus regularising their ad-hoc services within a period of 3 (three) "months from the date of receipt of this judgment and order by issuing necessary orders and for the present, they shall be allowed to continue in their respective posts till regularisation. of their services in terms of the decision indicated above and in view of the changed situation as indicated in the discussion of the facts of this case as stated above.

For the reasons, observations and directions made above, these two writ petitions are disposed of, no costs.

Pursuant to the aforesaid judgment, in which Office Memorandum dated 19.8.98 was taken into consideration, the State Government passed orders on 21.12.98 regularising the services of the ad-hoc appointees. Copies of these orders have been appended as Annexure-X/15 with W.A. No. 484/2001. The opening portion of the orders dated 21.12.98, regularising the ad-hoc appointees, reads as under:

Orders by the Governor, Manipur

Imphal, the 21 st December, 1998.

No. 1/3/98-M: On the recommendation of the Screening Committee/Selection Committee meeting held on the 17th and 18th December, 1998, in pursuance of D.P.''s O.M. No. 14/2/98- Ad-hoc/DP dated 19.8.98 and Notification No. 17/2/95-MPSC(Exempt)/DP dated 19.8.98 read with the Hon''ble Gauhati High Court''s order dated 7.12.98 passed in C.R. Nos. 1222/98 and 1226/98, the Governor is pleased to regularise the appointment of the following ad-hoc Medical Officers and Dental Surgeons to MHS Grade IV in the scale of pay of Rs. 2000-60-2300- EB-75-3200-100-3500/- p.m. plus such allowances as are admissible under the rules with effect from the date of their initial ad-hoc appointment, i.e., 11.3.96.

It may be observed here that the candidates for direct recruitment filed appeals against the judgment and order of the learned Single Judge, dated 7.12.98 (Writ Appeal Nos. 178/98,4/99, 8/99 and 9/99), which were disposed of by a common judgment dated 1.3.99. The judgment of the learned Single Judge was set aside as also the orders in favour of the ad-hoc appointees regularising their services, i.e., orders dated 21.12.98. By the said judgment, the State Government was directed to fill up the posts of Medical Officer/Dental Surgeon in accordance with MHS Rules, 1982, through the MPSC and not by any other method.

It may be observed here that the ad-hoc appointees as well as the State Government filed different Special Leave Petitions in the Apex Court, which were converted into appeals, against the judgment and order of the Division Bench, dated 1.3.99. During the pendency of the appeals 4 before the Apex Court, the State Government issued a notification under Article 309 of the Constitution of India on 22nd July, 1999, adding a proviso to Clause (a) of Sub-rule (1) of Rule 7 of the Manipur Health Service Rules, 1982. This amendment or insertion of the proviso was brought about with retrospective effect i.e., from 19.8.1998, i.e., the date on which the Office Memoradum referred to above was issued. For ready reference, the notification dated 22.7.9i9 reproduced hereunder:

Notification

Imphal, the 22nd July, 1999

No. 1/51/83-MHS/DP: In exercise of the powers conferred by the provisio to Article 309 of the Constitution of India the Governor of Manipur is pleased to make the following rules further to amend the Manipur Health Service Rules, 1982, namely:

(1) These Rules may be called the Manipur Health Service (Amendment) Rules, 1999. (2) These rules shall be deemed to have come into force with effect from 19.8.1998.

In Clause (a) of Sub-rule (1) of Rule 7 of the Manipur Health Service Rules, 1982, the following proviso shall be added; namely:

Provided that it shall not be necessary to seek the recommendation of the Commission with regard to the process of recruitment for appointment to the MHS Grade IV in the case of those who were appointed during the period from 8.2.96 to 12.2.97 after inviting applications from eligible candidates through advertisement and on the recommendation of the Screening Committee constituted under the Department of Personnel Office Memorandum No. 14/6/95-DP, dated 8.2.96.

This issues with the approval of the Cabinet vide Agenda No. 7 of its meeting held on 17.7.99.

By order & in the name of the Governor Sd/- Under Secretary (DP), Government of Manipur.

(Hereinafter the above notification dated 22.7.99 will be referred to as the first amendment to the MHS Rules, 1982).

It was brought to the notice of the Apex Court that the MHS Rules, 1982 had been amended by bringing in a proviso with retrospective effect, and an order was passed by the Apex Court on 9.8.99, which reads as under:

During the pendency of these Special Leave Petitions the rules have been amended specifically providing that for regularisation of the ad-hoc employees, it would not be necessary to consult Public Service Commission and the rules have been given retrospective effect as a result of which, basis of the judgment of the Division Bench had been knocked out. It was also stated before us that the validity of the rules has been assailed by filing Writ Petition in the Gauhati High Court. In this view of the matter put up these applications on 20.8.1999 for final disposal.

Thereafter, the matter was taken up by the Apex Court on 1st October, 1999, and the Civil Appeals were disposed of by passing the following order:

Order Permission to file SLP allowed. Leave granted.

This bunch of appeals is directed against the judgment of Gauhati High Court. By the impugned judgment, the High Court has set aside the regularisation of the ad-hoc Medical Officers and Dental Surgeons in State of Manipur. While these appeals were pending in this Court, the Health Service Rules, 1982 had been amended giving it retrospective effect with effect from 19.8.1998 on which date the earlier memorandum dated 19.8.98 had been issued obviating the consultation with the Public Service Commission under Article 320 in respect of appointment. By virtue of the impugned'' amendment to the Health Service Rules the services of these Doctors have been said to be regularised, notwithstanding the judgment of the Gauhati High Court. We are not expressing any opinion on the legality of the aforesaid amended provision of the Rules, but in view of the said rules the impugned direction of the Gauhati High Court cannot be sustained. We also noticed from the affidavit filed on behalf of the State of Manipur that so far as the advertisement that was issued on 14.7.1997 indicating the number of vacancies in Manipur Health Service Grade IV, all those posts advertised will be filed 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 claim to be 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. In this view of the matter, without expressing any opinion on the legality of the amended provision of the rules, we set aside the impugned judgment of the Gauhati High Court and these ad-hoc Doctors can be regularised in accordance with the amended provision of the rules. According to the counsel for these Doctors, regularisation has already been made. We make it clear that if any person is aggrieved by the amended provision of the rules, it is open to him to challenge the legality of the same in the High Court and on such challenge being made, the High Court will examine the validity of the rules on its own, since we are not expressing any opinion on the same. The State will take appropriate action in accordance with amended provision of the rules.

The appeals are disposed of accordingly.

It may be observed here that prior to the aforesaid two orders of the Apex Court, the candidates other than the ad-hoc appointees who had applied pursuant to the advertisement dated 14.7.97, had challenged the validity of the first amendment dated 22.7.99 brought into force with effect from 19.8.98 by way of WP(C) No. 997/99 on 4.8.99. However, the same was withdrawn on 12.8.99, with liberty to file fresh writ petition. Subsequently, the first amendment was challenged by filing WP(C) Nos. 1371/99 and 1395/99, on 2.5.10.99 and 2.11.99, respectively. The first amendment was stayed by ah interim order of a learned Single Judge on 19.11.99.

It may be observed here that pursuant to the directions of the Apex Court, dated 1.10.99, and till this Court stayed the first amendment on 19.11.99, no further action on the directions of the Apex Court was taken by the State Government. However, on 3rd September, 2001, Anr. notification under Article 309 of the Constitution of India was issued substituting the earlier notification dated 22.7.99 (i.e., the first amendment). This amendment (hereinafter referred to as the second amendment) was to come into force from the date of publication in the official gazette. We are told that the said amendment was notified in the Gazette on 4.9.2001. The notification dated 3.9.2001 reads as under:

Notification Imphal, the 3rd September, 2001

No. 1/51/83-MHS/DP: In supersession of this Government Notification of even number dated 22.07.1999 and in exercise of the powers conferred by the proviso to Article 309 of the Constitution of India, the Governor of Manipur hereby makes the following rules further to amend the Manipur Health Services Rules, 1982, namely:

Short Title and Commencement:

(1) These Rules may be called the Manipur Health Service (Amendment) Rules, 2001.

(2) They shall come into force from the date of publication in the official Gazette.

For the existing Clause (a) of Sub-rule (1) of Rule 7 of the Manipur Health Service Rules, 1982, the following shall be substituted namely:

Method of recruitment- (1)(a) Direct recruitment to any grade of the service including specialist posts in a grade shall be made on the recommendation of the Commission.

Provided that in the case of a person, who had been appointed to a post, which post is subsequently declared/encadered as duty post, he shall be declared to have already been appointed to a duty post from the date on which the post was declared/encadered as duty post.

By order & in the name of the Governor Sd/- (P. Bharat Singh) Commissioner (DP), Government of Manipur.

After the issuance of the second amendment, the State Government passed orders on 15.10.2001 terminating the services of the ad-hoc appointees. This led them to file WP(C)Nos. 1704/2001 and 1705/2001. It was prayed that despite the second amendment, the rights of the Petitioners to be regularised as per the first amendment read with Office Memorandum dated 19.8.98, as also the directions of the Apex Court were not effected. The learned Single Judge allowed the writ petitions, vide the impugned judgment dated 30.11.200.1. Hence the present writ appeals, as also the writ petitions, which have been mentioned in the opening paragraph of the judgment.

The learned Single Judge was of the view that the State Government was required under law to carry out the directions of the Apex Court given in its order dated 1.10.99 (supra) and further action was required to be taken by the State Government regarding the ad-hoc appointees in terms of the first amendment. The learned Single Judge was further of the view that the second amendment is not retrospective and, rather, prospective and whatever rights flowed from the first amendment read with the Office Memorandum dated 19.8.98 upto the date of substitution of the first amendment by the second amendment, could not be taken away. The learned Single Judge also observed that in any case if the rights to the ad-hoc appointees to get their services regularised under the first amendment read with Office Memorandum dated 19.8.98 could be taken away, it could not be taken away prior to 19.11.99, when the learned Single Judge stayed the implementation of the first amendment. The learned Single Judge while allowing the writ petitions, set aside the termination order dt. 15.10.2001 and directed the State Government to regularise the services of the writ Petitioners having applied the poriviso to Rule 7(1)(a) of MHS Rules, 1982, as it stood between the period from 22.7.99 and 19.11.99. This was ordered to be done within a period of 60 (sixty) days.

The learned Advocate General, Manipur, appearing on behalf of the State in the appeals filed by the State submitted that the first amendment was of a temporary nature and the State Government after due consideration decided not to give the right of regularisation, which was intended to be given by the first amendment and, therefore, repealed the first amendment, vide notification dated 3.9.2001. According to the learned Advocate General, no right came to be vested in the ad-hoc appointees by virtue of the Office Memorandum dated 19.8.98, read with the first amendment, which came into force with effect from 19.8.98. This could be withdrawn any time. The writ Court could not have directed the State Government to regularise the services of the ad-hoc appointees, in view of the Office Memorandum dated 19.8.98, which judgment, according to the learned Advocate General, had rightly been set aside by the Division Bench in writ appeals. Since the first amendment stood repealed by the second amendment, the directions given by the Apex Court, that further action regarding the ad-hoc appointees be taken in accordance with the first amendment, could not be given effect to inasmuch as after 3.9.2001 the first amendment was no more on the Statute Book.

From the narration of the facts above, it will be evident that despite a learned Single Judge and a Division Bench of this Court holding that the posts should be filled in accordance with the rules and for that matter an advertisement should be issued, the State Government, despite issuing advertisement on 14.7.97 for direct recruitment as per the MHS Rules, 1982, yet came out with the Office Memorandum dated 19.8.98 for regularising the ad-hoc appointees, like the writ Petitioners. This shows the intention of the State Government as on 19.8.98, despite having issued the advertisement dated 14.7.97. Two inferences could follow from the Memorandum dated 19.8.98. Either the State Government wanted to fill up as many posts as were advertised and simultaneously regularise the ad-hoc appointees vide Memorandum dated 19.8.98, or, the State Government did not wish to go ahead with the direct recruitment, at least for that many posts as were being held by the ad-hoc appointees and to regularise them as per the Office Memorandum dated 19.8.98. The State Government accepted the judgment of the learned Single Judge dated 7.12.98 in WP(C) No. 1222/98 and 1226/98 (Annexure-X/13) whereby it was directed that the ad-hoc appointees be regularised as per the Memorandum dated 19.8.98. The directions were carried out by issuance of orders on 21.12.98, regularising the ad-hoc appointees. When this judgment was set aside in appeal and the orders of regularisation were set aside by the Division Bench and the matter was pending before the Apex Court, the State Government again showed its intention to regularise the ad-hoc appointees by bringing in the first amendment on 22.7.99, with retrospective effect from 19.8.98. It seems, this was really to overcome the judgment of the Division Bench, because the State Government wanted to regularise the ad-hoc appointees by making amendment in the MHS Rules, 1982, read with the Memorandum dated 19.8.98. The very fact that the first amendment was given retrospective effect with effect from 19.8.98, i.e. the date of the Office Memorandum was issued, goes to show the intention of the State Government to regularise the ad-hoc appointees, who had in fact earlier been regularised as per the Office Memorandum dated 19.8.98 vide order dated 21.12.98.

The Apex Court also observed in its order dated 1.10.99, that "these ad-hoc Doctors can be regularised in accordance with the amended provision of the rules." In the concluding portion of the order, the Apex Court observed:

The State will take appropriate action in accordance with amended provision of the rules, (i.e., the first amendment).

It may, however, be observed that the Apex Court, vide its order dated 1.10.99, had set aside the impugned judgment of the Division Bench, dated 1.3.99, on the ground that the very basis of the judgment had been knocked out by the first amendment. It seems the State Government was in a predicament as to what it to be done after the Apex Court had set aside the judgment and order of the '' Division Bench, which according to the State Government, may have meant that the judgment of the learned Single Judge stood revived'' and, so also the orders of regularisation already passed on 21.12.98 pursuant to the judgment of the learned Single Judge. The predicament was, whether after the directions of the Hon''ble Supreme Court, whether a fresh order of regularisation was to be passed or not. I. A. Nos. 1-14/99 was moved by the State Government and in paragraph (xiv) of the same, it was averred on behalf of the State Government as under:

(xiv) That after hearing the counsels for the parties, this Hon''ble Court, by its order dated 1.10.99 was pleased to grant leave and disposed of the appeals. This Hon''ble Court was pleased to set aside the impugned judgment of the Hon''ble Gauhati High Court and hold that these ad-hoc Doctors can be regularised in accordance with the amended provision of the rules, if they come within the purview of the said rules. In this regard, the present applicant, the State of Manipur submits that since the impugned judgment and order has been set aside, the order of regularisation dated 21.12.98, issued by it, which was quashed by the impugned judgment would stand revived. It is not clear to the applicant as to whether, pursuant to the order dated 1.10.99, fresh orders of regularisation of ad-hoc services are to be issued again or the orders of regularisation dated 21.12.98 which stood revived, will be required to be revalidated. The present applications are being filed for seeking clarification on this aspect from this Hon''ble Court.

The prayer made in the I.As was as follows:-"It is therefore prayed that this Hon''ble may graciously be pleased to:

(a) Clarify as to whether, pursuant to the order dated 1.10.99, fresh orders of regularisation of ad-hoc service are to be issued again or the orders of regularisation dated 21.12.98 which stood revived, will be required to be revalidated or not;

(b) Clarify the number of post of Medical Officers (MHS-IV) and Dental Surgeons to be filled up on the recommendation of on going recruitment process by the MPSC, in pursuance of advertisement issued on 14.7.97 for the post of 175 Medical Officers and 20 Dental Surgeons with the condition that the number of post are likely to be increased or decreased, in the facts and circumstances that there are clear 100 (one hundred) vacancies in the post of Medical Officers and 7 (seven) vacancies in the post of Dental Surgeon for appointment on the recommendation of on going test by the MPSC.

The said IAS were dismissed by the Apex Court on 13.3.2000.

Now, the question that arises is whether the learned Single Judge was right in quashing the termination orders and giving directions to the Respondent State, as have been noticed above. According to us, no fault can be found with the judgment and directions of the learned Single Judge. What the learned Single Judge has observed is that the first amendment held the field, at least, upto 19.11.99, when the implementation of the same was stayed by the learned Single Judge of this Court. It may be observed here that the writ petition in which the aforesaid interim order of staying the implementation of the first amendment was passed, i.e. WP(C) Nos. 1371/1999 and 1395/1999, were ultimately disposed of as anfractuous on 4.9.2001, as it was stated that by virtue of the second amendment the first amendment stood superseded/repealed. The learned Judge did not go into the validity of the first amendment. Withdrawal or suppression of the first amendment was with prospective effect, i.e., with effect from 4,9.2001. In other words, the first amendment would be very much on the statute book till it was withdrawn, or till the implementation of it is stayed, whichever was earlier. In the present case, the learned Single Judge has held that the first amendment held the field at least till the learned Single Judge stayed its implementation on 19.11.99. In other words, the first amendment was on the statute book from 19.8.98 (i.e., the date of its enforcement) till 19.11.99. Whatever rights to any individual accrued by virtue of the first amendment, have not been taken away by the second amendment which, as observed above, is prospective in nature. In other words, the State Government was duty bound and under obligation to comply with the directions of the Apex Court dated 1.10.99 till the first amendment was on the statute book, or its implementation had been stayed. Simply because the amendment was under challenge, did not absolve the State of its obligation to comply with the directions of the Apex Court. Even if the date, i.e., 19.11.99, had gone by and no action by the State Government had been taken prior to that date, certainly the State Government could take action afterwards to bestow whatever rights flowed to the ad-hoc appointees prior to 19.11.99. This order could have been passed even after the writ petition challenging the validity of the first amendment had been disposed of as infructuous. Take for example, the State '' Government was to amend the rules giving certain pay scales to certain class of employees and that amendment is challenged by certain individuals who may not be getting ". that benefit. The writ petition keeps on pending for about 2/3 years in the Court and after three years the earlier amendment giving particular pay scale to particular class of employees is withdrawn with prospective effect. Without judging the validity of such a notification can the State Government deny the pay scale for the interregnum period on the ground that now the earlier notification stands withdrawn? The answer, according to us, is to be in the negative. Till the earlier notification is withdrawn or is stayed, the Government under the circumstances is bound to grant the pay scales as per the earlier notification till the date of withdrawal or stay, as the case may be.

In the present case, we are of the view that the order of regularisation had already been passed on 21.12.98 pursuant to the judgment of the learned Single Judge in Civil Rules Nos. 1222/1998 and 1226/1998 (supra) and in view of the Office Memorandum dated 19.8.98. The first amendment, though published in the Gazette on 22.7.99 was brought into force with retrospective effect, i.e., from 19.8.98, i.e., the date of Office Memorandum was issued. It is mentioned in the first amendment that the same would be deemed to have come into effect from 19.8.98. This would mean that it was on the statute book on 19.8.98, when the Office Memorandum was issued, and after that the order of regularisation had been passed. After all, the amendment was brought about with retrospective effect only to give benefit to the ad-hoc appointees. It is not understood as to why those rights which were sought to be conferred by the Office Memorandum dated 19.8.98 and the first amendment, can be said to be taken away. According to us, only a formal order was required from the State Government upholding regularisation pursuant to the orders of the Apex Court dated 1.10.99. It is needless to mention that really the regularisation was in consonance with the Office Memorandum read with the first amendment.

In passing, we may also observe that an ad-hoc appointee has no right to regularisation and stick to the post unless it is granted by the rules/notification. In the present case, this right was sought to be granted by Office Memorandum dated 19.8.98 and if the State Government felt that there was any lacuna in the same as the rules had not been amended, the same was also filled by way of the first amendment, which was brought about on 22.7.99, with retrospective effect from 19.8.98. On the aforesaid ground, we do not find any infirmity in the judgment of the learned Single Judge and we uphold the same.

The appeals of the State Government, namely, Writ Appeal Nos. 484/2001 and 493/2001, would stand dismissed and the writ petitions aforesaid, namely, WP(C) Nos. 1808/2001,1810/2001 and 1826/2001, will stand allowed in the same terms as the impugned judgment of the learned Single Judge read with the observations made above.

So far as the other two writ appeals at the behest of the candidates other than the ad-hoc appointees, who had been selected pursuant to the advertisement dated 14.7.97, viz., Writ Appeal Nos. 491/2001 and 492/2001 are concerned, suffice it to say that in the order dated 1.10.99 (reproduced above) of the Apex Court, it was clearly observed that it was undertaken on behalf of the State of Manipur that the selectees pursuant to the advertisement dated 14.7.97 would be given appointment. It will be apposite to reemphasise those lines of the Apex Court order hereunder:

We also notice from the affidavit filed on behalf of the State of Manipur that so far as the advertisement that was issued on 14.7.97 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 claim to be the applicants before the Public Service Commission, Manipur cannot possibly have any grievance in as much 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.

It may be observed here that the State Government wanted to get out of the aforesaid undertaking by way of filing I. As Nos. 1-14/1999 before the Apex Court. In paragraph (xvii) of the IA, it was averred on behalf of the State Government as under:

(xvii) That the said 284 additional posts of Medical Doctors/Medical Officers which could be available after the cadre review, will not be available as the Government of Manipur has taken policy decision to downsize the number " of employees in the State Government as early as 22.9.99 and also to ban all cadre review having implication of additional post creation due to precarious financial conditions of the State of Manipur. Unfortunately, these facts could not be placed before this Hon''ble Court at the time of hearing because of communication gap between the State Government and its standing counsel. This being the factual position, the statement in the para 11 of the affidavit on behalf of the State of Manipur that "number of post advertised by the MPSC, i.e., 175 Medical Officers and 20 Dental Surgeons will be filled by the Govt. on the recommendation of MPSC inasmuch as the number of vacancies in the MHS-IV had been increased" were not correct as on date of passing the order dated 1.10.99 by this Hon''ble Court. Copies of policy decision, namely, Memorandum dated 22.9.99, order dated 6.11.99 and order dated 19.10.99 are annexed herewith as Annexure-A/3, A/4 and A/5, respectively.

As has already been observed above, the said I.As were dismissed on 13.3.200. In view of the above, there can be no manner of doubt that the State Government has to abide by its own undertaking given before the Apex Court and all the selectees pursuant to the advertisement dated 14.7.97 would have to be given appointment. These two writ appeals are disposed of in the above terms.

The learned Advocate General places before us the difficulties of the State Government as there are no posts. It is the difficulty the State Government has created for itself and it must solve that difficulty, even by creating additional posts, if necessary.

As a matter of abundant caution, we may observe here that this judgment of our does not in any way opine anything regarding the validity of the first amendment or the second amendment. Any party aggrieved by the first amendment or the second amendment would be at liberty to challenge the same before an appropriate forum. Necessarily, he would be at liberty to challenge any action taken pursuant to the first amendment or the second amendment.