Kh. Nobin Singh, J. - (1.) HEARD Shri R.K. Manikanta, learned counsel appearing for the petitioner; Shri K. Jagat, learned Govt. Advocate appearing for the respondent No. 1 and Shri A. Bimol, learned counsel appearing for the respondent No. 2.
(2.) THE present writ petition has been filed by the petitioner praying for withdrawal and cancellation of the impugned orders dated 10 -01 -2012, 12 -01 -2012 and 21 -01 -2012 and also for regularising/absorbing the petitioner as Assistant Professor at JNIMS. 2.1. According to the petitioner, he was at the relevant time serving as Medical Officer (M.O) in the erstwhile Jawaharlal Nehru Hospital, Government of Manipur which came to be sought to be converted into a technical hospital under the control of the Jawaharlal Nehru Institute of Medical Sciences (hereafter referred to as JNIMS), a registered society and accordingly, the Commissioner (Health & F.W.), Government of Manipur issued an order dated 02 -05 -2009 by which the erstwhile J.N Hospital and its staff was placed under the Academic, Administrative and Disciplinary Control of the Director, JNIMS subject to the terms and conditions mentioned therein. While the petitioner was working under the said placement, the Commissioner (Health & F.W), Government of Manipur issued another order dated 10 -01 -2012 by which the petitioner was repatriated from the JNIMS and was posted at the District Hospital, Churachandpur with immediate effect and until further order. In line with the said order dated 10 -01 -2012, the Director of Health Services, Manipur issued a memorandum dated 12 -01 -2012 informing the petitioner that he should comply with the said order dated 10 -01 -2012 issued by the Commissioner (Health & F.W) and join immediately the new place of posting failing which action would be initiated against him. After the petitioner having been repatriated, the Director, JNIMS issued a memorandum dated 21 -01 -2012 ordering that payment of salary of the petitioner from JNIMS fund be stopped w.e.f. 13 -01 -2012. 2.2. It is vehemently submitted by the learned counsel appearing for the petitioner that from the day the said order dated 02 -05 -2009 was issued by the State Government, the petitioner became an employee of the JNIMS and therefore, the State Government had no power and authority to issue the impugned orders dated 10 -01 -2012 and 12 -01 -2012 and it was only the JNIMS which could have issued any order as regards the service conditions of the petitioner. It is also the contention of the learned counsel for the petitioner that since the said order dated 10 -01 -2012 had been stayed vide order dated 24 -04 -2014 passed by this court, the petitioner continued to be the employee of the JNIMS. In order to substantiate his contention, the learned counsel appearing for the petitioner has relied upon the various decisions rendered by the Hon'ble Supreme Court in about 18 cases namely : AIR 1993 SC 2592; : (1994) 1 SCC 431; : (1996) 4 SCC 590; : (2006) 8 SCC 129; : AIR 1977 SC 747;, 1994 Suppl. (3) SCC 471; : (1999) 8 SCC 99; : AIR 1977 SC 629; : AIR 1994 SC 745; : (1997) 8 SCC 372; : (1999) 4 SCC 659; : (2007) 10 SCC 684; : (1997) 6 SCC 169; : (2008) 3 SCC 222; : AIR 1982 SC 101; : (1997) 10 SCC 627; : AIR 1988 SC 876 & : (2001) 9 SCC 54. The writ petition is contested by the State of Manipur by filing an affidavit -in -opposition stating therein that as a policy decision, the J.N. Hospital was transferred to JNIMS subject to the conditions mentioned in the order dated 16 -01 -2010. The transfer being for three years, the incumbent doctors were required to exercise options either to join JNIMS or to return to Health Department, Government of Manipur and if any doctor wished to join JNIMS, he was required to apply based on qualification and experience as per relevant recruitment rules and the selection was to be made on the recommendation of a duly constituted DPC and appointment order was to be issued accordingly. Since no order appointing the petitioner for any post at JNIMS was issued by it and in view of the exigency of service of a Radiologist at District Hospital, Churachandpur, the petitioner was repatriated from JNIMS and was posted at District Hospital, Churachandpur vide impugned order dated 10 -01 -2012 issued by the State Government. Having failed to comply with the said order dated 10 -01 -2012, the petitioner was placed under suspension vide order dated 17 -01 -2012 and the disciplinary proceeding initiated against him is still pending. In line with the State of Manipur, the JNIMS, the respondent No. 2 also filed its counter affidavit stating therein that pursuant to the transfer of the J.N. Hospital to JNIMS vide order dated 16 -01 -2010 subject to the conditions mentioned therein, the State Government issued a Memo dated 10 -03 -2010 informing the doctors and staff to exercise their options in the prescribed forms, failing which it would be assumed that they had opted to return to the Health Department, Government of Manipur. Since the petitioner did not exercise his option to join JNIMS, it was assumed that the petitioner had opted to return to the Health Department and was treated as a member of the Manipur Health Services. Moreover, in view of the exigency of service of a Radiologist at District Hospital, Churachandpur, the petitioner was repatriated from JNIMS and was posted at District Hospital, Churachandpur vide impugned order dated 10 -01 -2012. It is also submitted by the learned counsel appearing for the respondent No. 2 that since the petitioner was not eligible for appointment as Assistant Professor in JNIMS as per relevant recruitment rules, he had no right to claim for appointment/absorption as Assistant Professor at JNIMS without following any process of selection. It is further submitted that the writ petition is misconceived and deserves to be dismissed.
(3.) THE subject matter in issue relates to the interpretation of the provisions of the order dated 02 -05 -2009 issued by the State of Manipur and therefore, a full text of the said order dated 02 -05 -2009 is reproduced herein below: "Government of Manipur Secretariat : Health Department - - - - ORDERS BY THE GOVERNOR: MANIPUR Imphal, the 2nd May, 2009 No. 12/3/2007 -M(Pt -1) In order to fulfil the Minimum requirements prescribed by the Medical Council of India for establishment of Jawaharlal Nehru Institute of Medical Science (JNIMS) at Porompat, Imphal East, the Governor of Manipur is pleased to order placement of the existing Jawaharlal Nehru Hospital (JNH), Porompat, Imphal East and its staff under the Academic, Administrative and Disciplinary Control of the Director, JNIMS, Imphal under the following terms and conditions with immediate effect in public interest. 1. All staff of J.N. Hospital shall be under the control of Director, JNIMS, Imphal. 2. Medical Superintendent, J.N. Hospital, Imphal shall continue to be the DDO & HOO for J.N. Hospital under the control of Director, JNIMS, Imphal. 3. Director, JNIMS, Imphal is designated as Controlling Officer of Medical Superintendent, J.N. Hospital as well as Reporting Officer for writing of ACR of the later. 4. Leave applications for Class I and Class II Officers/employees shall be forwarded to the Government through Director, JNIMS under intimation to Director of Health Services, Manipur.;