N.KOTISWAR SINGH,J. - (1.) Heard Mr. H.S. Paonam, learned senior counsel assisted by Mr. A. Arunkumar, lear-ned Advocate for the petitioners in W.P.(C) No. 676 of 2016 as well as Mr. A. Bimol, learned counsel for the petitioner in W.P.(C) No. 722 of 2016 and Ms. Babita Th., learned counsel for the petitioner in W.P.(C) No. 766 of 2016. Also heard Mr. B.P. Sahu, learned senior counsel assisted by Mr. M. Tapan Sharma, learned counsel for the RIMS respondent as well as Mr. S. Suresh, learned CGC for the Union respondents.
(2.) Since there are certain common issues running through these 3 (three) writ petitions, these have been taken up and heard together and disposed of by this common judgment. On conclusion of the hearing on 24.03.2017, the judgement was dictated in the Court but could not be completed, hence continued on 27.03.2017. The corrected transcript of the judgment is being made available after three days of the pronouncement of the judgment.
(3.) W.P.(C) No. 676 of 2016 has been filed by 4 (four) petitioners who are presently working as Professors in the RIMS and claim to possess all the requisite qualifications and experience prescribed by the relevant recruitment rules for appointment to the post of Director (RIMS). The petitioners of this writ petition state that in a reply received on 17th July 2016 to an RTI application filed, the petitioners came to know of the relevant recruitment rules for the post of Director, RIMS. As per the aforesaid recruitment rules for the post of Director, the upper age limit for direct recruitment has been fixed at 50 years, relaxable for Government servants/RIMS employees and specially qualified candidates. The said recruitment rules provide the tenure of service as 5 years inclusive of 1 (one) year probation. The petitioners say that the said RTI application was filed after the respondent no. 1 issued the advertisement on 24.06.2015 for filling up the post of Director in which the upper age limit was fixed at 50 years relaxable for Government servants/RIMS officers and specially qualified candidates. However, the age of retirement of the post of Director has been shown to be 62 years which is stated to be as per existing recruitment rules. The petitioners contend that though all the petitioners were otherwise eligible for applying for the said post of Director, in view of the provision fixing the age of retirement of the post of Director at 62 years, which according to the petitioners was contrary to the rules applicable at that time to be 65 years, the petitioners challenged the said advertisement dated 24.06.2015 by filing a writ petition, being W.P.(C) No. 617 of 2015, after the petitioners failed to get any positive response from the authority concerned for correction of the age of superannuation of Director. The petitioners took the specific plea in the said writ petition that the age of superannuation of the post of Director cannot be 62 years but 65 years. This Court while issuing notice in the said writ petition W.P.(C) No. 617 of 2015 passed an order on 30.07.2015 holding that the petitioners had been able to make out a prima facie case for passing an interim order in their favour and passed the interim order to the effect that if any of the petitioners apply for appointment to the post of Director (RIMS) within the stipulated time, their case shall not be rejected merely on the ground that they had crossed the age limit and/or reached 62 years which is the age of retirement mentioned in the advertisement. The order dated 30.07.2015 passed in W.P.(C) No. 617 of 2015 is reproduced herein below as this would provide the backdrop of the issues involved in these writ petitions and for better appreciation of these issues. Accordingly, the same is reproduced herein below : "30.07.2015 Heard Mr. N. Ibotombi, learned senior counsel for the petitioners and Mr. A. Bimol, learned counsel for the Respondent RIMS. Also heard Mr. S. Rupachandra, learned ASG for Respondent No. 1. Issue notice returnable within 3 (three) weeks. Since the respondents' counsel have accepted notice on behalf of the respective respondents, no formal notice need be issued. There is a prayer on behalf of the petitioners for passing an interim order for staying the impugned advertisement as enclosed in the letter dated 24.06.2015 (Annexure A/6 colly) by which the post of Director, RIMS, Imphal has been advertised for appointment. In the said advertisement, the upper age limit of the applicants has been fixed at 50 years relaxable for Govt. Servants/RIMS Officers and specially qualified candidates. Further, it is mentioned in the Advertisement that the age of retirement for the post of Director of the RIMS, Imphal is 62 years as per existing recruitment rules. Mr. Ibotombi, learned senior counsel for the petitioners has taken exception to the aforesaid stipulations as being contrary to the Rules. As regards the upper age limit fixed at 50 years in the impugned advertisement, it has been submitted that in various similar institutions namely AIIMS, PGIMER, NEGRIHMS and JIPMER under the same administrative control of the Ministry of Health and Family Welfare, Government of India, the upper age limit has been fixed at 60/62 etc. It has been submitted that the RIMS which is a medical institute under the Ministry of Health and Family Welfare, Government of India has not adhered to the norms applied in other similar institutions in the rest of the country. Accordingly, it has been submitted that the fixing of age limit at 50 years in the aforesaid advertisement, is unreasonable and hence, liable to be interfered with. Coming to the second objection regarding fixing the age of retirement for the post of Director at 62 years in the impugned advertisement, it has been submitted that no such retirement age has been mentioned in the recruitment rules, a copy of which has been made available by the RIMS authority as contained in Annexure A/10. It has been submitted that the retirement age on superannuation for the post of Director of the RIMS had earlier been fixed by the RIMS authority at 65 years. It has been submitted that the Executive Council of the RIMS in their 42nd Meeting held on 05.08.2011 had taken the decision that the age of superannuation for the post of the Director of RIMS be fixed at 65 years at par with other medical institutions like AIIMS at Delhi, PGIMER at Chandigarh, NEGRIHMS at Shillong and JIPMER at Puducherry where it has been fixed at 65 years and all these medical institutions are under the administrative control of the Ministry of Health and Family Welfare, Govt. of India. It has been submitted that after the decision was taken by the Executive Council in their 42nd Meeting, the Ministry of Health and Family Welfare, NE wrote to the Director, RIMS informing that the Secretary, Health and Family Welfare in his capacity as the Chairman of the Executive Council, RIMS has approved the amendment to the whole Clause 12 of the Memorandum of Association of RIMS which reads as follows : "ii) The Director of the Institute shall be appointed by the President of Board of Governors (BOG), RIMS (Hon'ble Union Ministry of Health and Family Welfare, GOI) with the concurrence of the Central Government from a panel of names recommended by "a Search cum Selection Committee as approved by the Union Minister of Health and Family Welfare in his capacity as President of the Board of governors, RIMS and DOPT". The term of office of Director shall be five years or till the incumbent attains the age of sixty five years whichever be earlier. An incumbent Director shall be eligible for re-appointment for another term provided the procedure laid down herein before is followed. Authority for approval of extension in tenure of Director will vest with the ACC(*)." [* This is in consonance with the latest guidelines issued by GOI/DOPT vide O.M. No.AB.14017/11/2004- Estt.(RR), dated 30th July, 2007.] Thereafter, the Ministry of Health and Family Welfare, NE Division wrote a letter to the Director, RIMS on 17.05.2012 informing that the Ministry has approved the amendments in Clause 12 of Bye Laws of Regional Institute of Medical Sciences (RIMS), Imphal relating to appointment of Director, RIMS, Imphal. The said letter also refers to the decision of the authority to fix the age of superannuation of Director, RIMS at 65 years at par with other institutions viz., AIIMS, PGIMER, NEIGRIHMS etc. and decision to amend the Recruitment Rules for the post of Director, keeping in view Clause 12 regarding the age of superannuation and terms and conditions of similar posts, DOPT's guidelines relating to service rules/recruitment rules etc. Subsequently, the Executive Council in their 43rd Meeting held on 22.08.2012 confirmed the proceedings of the 42nd Meeting of the Executive Council. In terms of the aforesaid decisions, the Director, RIMS issued an order dated 03.09.2014 stating that in pursuance of the decision taken under agenda item No. 3 of the 42nd meeting of the Executive Council, Society of RIMS, Imphal held on 05.08.2011, the age of superannuation of Director, RIMS, Imphal shall be 65 years. Accordingly, necessary changes had been also made in the Bye Laws of RIMS as regards the age of superannuation of the post of Director of the Institute and the term of the office of the Director. The aforesaid changes can be seen from the amendment made in the Memorandum of Association, Rules and Regulations, Bye-Laws, relevant portion of which has been reproduced at para 5 of the Writ petition. Mr. N. Ibotombi, learned senior counsel for the petitioner submits that as it is the indisputable position now that the age of retirement of the post of Director of RIMS would be 65 years contrary to what had been mentioned in the impugned advertisement in which the age of retirement for the post of Director has been stated to be 62 years purported to be as per the existing Recruitment Rules. It has been submitted that being aggrieved by such wrong fixation of upper age limit and the age of superannuation for the post of Director, RIMS in the impugned advertisement, some of the petitioners and others had submitted representations to the authority including respondents No. 1 and 2 on 08.07.2015 and 16.07.2015 (Annexures A/8 and A/9 respectively) for making necessary changes in the age limit for the post of Director as well as in the relevant recruitment rules, in terms of the decision of the Executive Council, Rules and Regulations, the Memorandum of Association of the RIMS as mentioned above. The petitioners submit that they have genuine apprehension that if the impugned advertisement is not appropriately amended in terms of the decision of the Executive Council as incorporated in the Rules and Regulations, it will adversely affect all the petitioners. It has been submitted by Mr. Ibotombi, learned senior counsel for the petitioners that the petitioner Nos. 1, 2 and 4 have already applied for the said post of Director and the remaining petitioners will be also submitting necessary applications in terms of the impugned advertisement as the last date is 31st of this month. It has been submitted that in the event the impugned advertisement is not amended in conformity with the decision of the Executive Council as mentioned above, the candidature of the petitioners will be liable to be rejected which will cause irreparable injury to the petitioners, as the petitioners have crossed the age of 50 years and many of them are either nearing or crossed 62 years. To these contentions of the petitioners, Mr. A. Bimol, Ld. Counsel for the RIMS authority has submitted that as per the impugned advertisement, the age limit has been fixed at 50 years in terms of the recruitment rules for the post of Director, which has not been challenged by the petitioners. Further, in the impugned advertisement it is provided that the aforesaid age limit is relaxable for Government Servant/RIMS officers and specially qualified candidates. As such, since the petitioners are RIMS officers, their age can be relaxed by the authority as regards the age limit of 50 years and hence, their apprehension is unfounded. As regards the other issue of age of superannuation for the post of Director, RIMS, it has been submitted by Mr. Bimol, Ld. Counsel for the RIMS that it has to be ascertained as to whether the decision to enhance the age of superannuation of the post of Director to 65 years was taken by the Executive Council in terms of Rule 8(iii)(m) of the Rules and Regulations of the RIMS which provides that the Executive Council may amend the bye-laws, rules and regulations after obtaining concurrence of the Ministry of Health and Family Welfare, Government of India. It has been submitted by Mr. A.Bimol that it is not known whether prior concurrence of the Ministry was taken before the Executive Council took the decision in the 42nd Meeting to fix the age of superannuation of the post of Director at 65 years, which needs to be ascertained. As such, passing of any interim order can be considered after ascertaining this aspect. Mr. N. Ibotombi, learned Senior Counsel has submitted that since the petitioners had already submitted representations along with others on 08.05.2015 and 16.05.2015 (Annexures A/8 and A/9) respectively, the impugned advertisement for appointment to the post of Director, RIMS may be stayed till consideration of the said representations. Mr. A. Bimol, learned counsel for the RIMS respondent on the other hand prays that the present process for appointment may continue and any appointment made may be subject to the result of this petition. Heard learned counsel for the parties as regards the prayer of the petitioners for passing an interim order. As regards the first issue raised by the petitioners about fixing the age limit of the candidates at 50 years, it has been also mentioned in the advertisement as well as in the recruitment rules that it is relaxable for Govt. Servants/RIMS officers and specially qualified candidates, without, however, fixing any outer limit of the relaxation provided. In that view of the matter, as there is no limitation to the period of relaxation, as the petitioners are officers of the RIMS, they cannot be put to any disadvantageous position by this upper limit fixed which can be relaxed. Mr. A. Bimol, Ld. Counsel for the RIMS himself states that because of the relaxation provision, the authorities will examine their case for relaxation and the petitioners need not have any apprehension in that regard. Therefore, this Court would hold the tentative view that the petitioners cannot be disqualified on this ground, even though they may have crossed 50 years of age. Coming to the second issue, this Court is also of the tentative view that since the age of superannuation to the post of Director has been fixed at 65 years as decided in the 42nd meeting of the Executive Council of RIMS which has been approved by the Ministry of Health and Family Welfare, as evident from the letters dated 3.05.2012 (Annexure A/2) and 17.05.2012 (Annexure A/3) and as the necessary changes have been also incorporated in Rules and Regulation and Bye Law and Memorandum of Association of the RIMS as reflected in para 5 of the writ petition, the age of superannuation to the post of Director should be 65 years. The fact that this enhanced age of superannuation of the post of Director, RIMS fixed at 65 years has been incorporated in the Rules and Regulation of the RIMS, would lead to the presumption to its validity. In view of the above, fixation of 62 years as the age of superannuation for the post of Director as mentioned in the impugned advertisement dated 24.07.2015 does not seem to be in conformity with the existing Rules and Regulations, Bye- Laws and Memorandum of Association of the RIMS which govern the service conditions of the employees of RIMS including the post of Director. Accordingly, this Court is of the opinion that the candidature of any applicant for the post of Director, RIMS cannot be rejected merely on the ground that the age of retirement of the incumbent of the post of Director is 62 years as mentioned in the impugned advertisement and the age of the applicant is nearing or has crossed the age of 62 years. Considering the above, this Court is satisfied that the petitioners have been able to make out a prima facie case for passing an interim order in their favour, which would warrant certain interference by this Court at this stage, though this Court is not inclined to stay the process of selection initiated by the impugned advertisement. Accordingly, for the reasons discussed above, in the interim, it is directed that the case of the petitioners, if they apply for appointment to the post of Director, RIMS within the stipulated time, shall not be rejected merely on the ground that they have crossed the age limit of 50 years or that they are going to reach or have crossed 62 years which is the age of retirement mentioned for the post of Director, RIMS in the impugned advertisement. In other words, the cases of the petitioners who apply for the post of Director, RIMS shall also be considered along with others by the authorities for appointment to the post of Director, RIMS which has been initiated by issuing the impugned advertisement. Since these issues raised by the petitioners have to be finally adjudicated, it is provided that selection and appointment to the post of Director, RIMS pursuant to the impugned advertisement shall not be made without the leave of this Court. It is also clarified that as this interim order has been passed at the stage of motion, the Respondents would be at liberty to approach this Court for modification/vacation of this interim order. List after 3 (three) weeks." ;