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Judgment
By filing this Review Application, the judgment and order dated 18.8.2015 passed by the learned single Judge in WP(C)No. 28 of 2013 holding therein that the services of the petitioner has never been absorbed in JNIMS, rather he has been continued to be the employee of the State Government, has been sought to be reviewed.
Before adverting to the submissions advanced on behalf of the parties, the facts leading to filing of this Review Application are to be taken notice of as follows:
Jawaharlal Nehru Institute of Medical Sciences, Manipur (hereinafter referred to as JNIMS) upon being formed, was registered under the Manipur Societies Registration Act with aims and objectives to establish it as a Medical College. Upon its establishment, it approached to Medical Council of India for having permission to run a Medical College whereby a condition seems to have been imposed to have first independent teaching hospital with minimum infrastructure and teaching and non-teaching staff. Thereupon, in order to fulfill minimum requirement prescribed by the Medical Council of India, the Governor of Manipur vide its order dated 2.5.09 was pleased to place existing J.N. Hospital (JNS) and its staff under the academic, administrative and disciplinary control of the Director, JNIMS Imphal under certain terms and conditions which needs to be mentioned here as the contention of the petitioner would be revolving around it. The entire order dated 2.5.2009 reads as follows:
"ORDERS BY THE GOVERNOR OF MANIPUR
Imphal, the 2nd May, 2009
No.12/3/2007-M(Pt-1) In order to fulfill the Minimum requirements prescribed by the Medical Council of India for establishment of Jawaharlal Nehru Institute of Medical Sciences(JNIMS) at Porompat, Imphal East, the Governor of Manipur is pleased to order placement of the existing Jawaharlal Nehru Hospital (NJH), 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.
All staff of J.N. Hospital shall be under the control of Director, JNIMS, Imphal.
Medical Superintendent, J.N. Hospital, Imphal shall continue to be the DDO & HOO for J.N. Hospital under the control of Director, JNIMS Imphal.
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.
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.
Director, JNIMS shall be the Authority for grant/sanction of leave in respect of Class III and IV staff of J.N. Hospital. Leave Applications shall be processed by the Medical Superintendent, being custodian of service Books/service records of J.N. Hospital staff, and he will submit such leave applications to Director, JNIMS. Relevant copies of Leave Sanction Orders shall be sent to Director of Health Services, Manipur. Leave Accounts/Records for those employees at J.N. Hospital available in the Directorate of Medical/Health Services, Manipur shall be transferred to the office of Director, JNIMS.
Director, JNIMS and the Medical Superintendent, J.N. Hospital, Imphal shall prepare a draft Organizational Chart covering both the existing staff of J.N. Hospital and the College Faculty in order to facilitate smooth integration.
It is further ordered that Transfer and Posting from and to J.N. Hospital, Imphal shall continue to vest with the Transfer and Posting Committee chaired by Hon''ble Minister (Health & F.W), Manipur. Director, JNIMS may be invited to the said Committee whenever matters relating to J.N. Hospital, Imphal are being discussed.
Major office works and procurements from Government budget shall continue to be processed by Director of Health Services, as per existing rules. However, for those relating to J.N. Hospital & JNIMS, it shall be based on proposals submitted by Director (JNIMS). In cases initiated by the Directorate, it shall be done in consultation with Director (JNIMS).
The requirement of administrative staff for JNIMS shall be met by deputation of staff from Health Department and other government departments as a first step. Director (JNIMS) is authorized to identify suitable staff in consultation with the concerned Head of Departments and issue a request to the Department concerned. To meet the MCI deadline, departments should depute the identified staff promptly.
This issues with the approval of State Cabinet on 20.4.2009.
By orders & in the name of Governor,
Sd/-(V.Vumlunmang)
Commissioner(Health & FW),
Government of Manipur."
Subsequently, the Governor of Manipur vide its order dated 16.1.2010 was pleased to transfer J.N. Hospital (JNS) Imphal East, Porompat to JNIMS with immediate effect with following conditions:-
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(i) Only such posts as required by the JNIMS shall be transferred from the State Health Department. All sanctioned posts in J.N. Hospital including Doctors, Paramedical staff etc. may be transferred to JNIMS subject to requirement of JNIMS. The post of MHS Doctors posted in J.N. Hospital shall be decadred from Manipur Health Service(MHS). The posts against which MHS Doctors will be posted to JNIMS hospital shall be treated as ex-cadre posts of MHS. 8(eight) post of MHS Grade-II and 10(ten) posts of MHS Grade-III levels shall be kept as cushion. All Doctors in MHS will be eligible to apply for the teaching/faculty posts based on their qualifications and experience. Selection for the posts of Assistant Professor will be through a duly constituted DPC/Selection committee by JNIMS. Paramedical staff presently posted in the existing J.N. Hospital shall be transferred to JNIMS subject to their willingness vacancies available thereafter may be filled up by the JNIMS Society.
(ii) Initial period of transfer of MHS Doctors to JNIMS shall be for 3(three) years. During this three years period, JNIMS Society may not send back MHS Doctors posted on non-teaching category to the State Health Department except, after consultation and under special circumstances. The MHS Doctors posted against excadre posts in JNIMS shall have the option to apply for repatriation to their parent cadre during the three years period.
(iii) State Govt. shall provide grant-in-aid to JNIMS through the budget of Health Department separately for meeting expenses on (a) creation of infrastructure, (b) salaries and allowances of authorized employees, (c) maintenance of the Institute consequent to the transfer.
(iv) All financial matters relating to JNIMS including Plan and Budge etc. shall be submitted to Executive Council, JNIMS after obtaining the considered recommendation of the JNIMS Finance Committee.
(v) The internal audit of accounts of JNIMS shall be carried out by the State Local Fund Audit Directorate at least once a year and may be done more often, if necessary, CAG/AG, Manipur shall audit JNIMS accounts annually.
(vi) Health Department may issue directions to the Director, JNIMS from time to time on important issues.
By orders & in the name of Governor
Sd/-(Athem Muivah)
Joint Secy (Health & FW)
Govt. of Manipur."
In order to carry out the said order dated 16.1.2010, another order was passed on 10.3.2010 as a next step to complete the process of transfer whereby it was stipulated that option has to be exercised by the Doctors and staff posted at JN Hospital indicating their choice either to join JNIMS or to return to Health Department. The option was asked to be submitted by 15.3.2010 through Medical Superintendent, JN Hospital. It was categorically mentioned in that order that in case any Doctor or staff posted at JN Hospital does not exercise option by that date, it would be assumed that he has opted to return to Health Department. [5.1] Before issuance of the said order, the JNIMS came with the recruitment rules dated 23.1.2010 wherein post of Assistant Professor was to be filled up by direct recruitment whereby the age limit was prescribed as 45 years.
[5.2] It appears that when the petitioner did not opt in terms of the order dated 10.3.2010 for his appointment in JNIMS an order was passed on 10.1.2012 whereby the Governor in the exigency of the requirement of the services of a Radiologist in the District Hospital, Churachandpur transferred the petitioner from JN Hospital/JNIMS and posted in the District Hospital, Churachandpur.
[5.3] Immediately thereafter, the Director JNIMS relieved the petitioner from JN Hospital/JNIMS under order dated 12.1.2012. In spite of that when the petitioner did not join his new assignment, the petitioner was placed under suspension vide order dated 17.1.2012. Subsequently, Director, JNIMS also passed an order on 21.1.2012 stopping salary of the petitioner from JNIMS'' fund with effect from 13.1.2012.
[5.4] Thereupon, the petitioner by filing a writ application bearing WP(C) No. 28 of 2013 challenged those orders dated 10.1.2012 and 12.1.2012 whereby the petitioner had been transferred and posted as Radiologist at District Hospital, Churachandpur and was relieved from the JNIMS and also the order dated 21.1.2012 whereby his salary had been stopped to be paid from JNIMS''s fund.
The contention which was made before the learned single Judge was that the petitioner who was working in JN hospital would be deemed to have been absorbed in JNIMS as soon as order dated 2.5.09 was issued whereby JN Hospital and its staff were placed under the academic, administrative and disciplinary control of the Director, JNIMS and thereby when the services were absorbed or merged in the establishment of the JNIMS, the Govt. of Manipur had no authority to issue those orders which were challenged. [6.1] The aforesaid contention was never accepted by the learned single Judge who was pleased to hold that order dated 2.5.2009 has nothing to do with the matter relating to merger or absorption of the Doctors/staff of the JN Hospital with the JNIMS, rather that order dated 2.5.09 was issued in order to fulfill minimum requirement prescribed by the Medical Council of India for establishment of Jawaharlal Nehru Institute of Medical Sciences and thereby by that order Doctors and staff of the JN Hospital were placed under the academic administrative and disciplinary control of the Director, JNIMS. Further, it was held that the process of transfer/merger of the JN Hospital, JNIMS was initiated subsequently vide its order dated 16.1.2010 on condition that all sanctioned posts in JN Hospital including Doctors/ Paramedical staff etc. may be transferred to JNIMS subject to requirement of JNIMS and thereby the post of MHS Doctors posted at JN Hospital shall have to be decadred from Manipur Health services. In such situation, it was stipulated that all Doctors in MHS will be eligible to apply for the teaching/Faculty post based on their qualifications and experience and selection for the post of Assistant Professor will be through a duly constituted DPC/ Selection committee by JNIMS. At the same time, it was also stipulated that initial period of transfer of MH Doctor to JNIMS shall be for 3 years and during these three years period JNIMS Society may not send back MHS Doctor posted at non teaching category to the State Health Department that MH Doctors posted against the ex-cadre post in JNIMS shall have the option to apply for repatriation to their parent cadre during 3 years period. Pursuant to said order, options were asked to be submitted by Doctors and staff of JN Hospital to opt either to join JNIMS or to return to Health Department vide order dated 10.3.2010. By the said order, it was also made clear that if no option is given by the Doctors or staff of JN Hospital, it would be deemed that they have opted to return to Health Department.
[6.2] Since the petitioner did not opt, order was passed of his transfer to Churachandpur District Hospital and subsequently of his relieving from JNIMS and then order of suspension and also stopping of salary which were under challenge but the and learned single Judge did not interfere with the orders as the services of the petitioner had never been absorbed in the RIMS nor he had ever been appointed in terms of the recruitment rules and thereby writ petition was dismissed.
Being aggrieved with that order, petitioner filed SLP Civil Appeal No.29886/15 which was dismissed on 30.10.2015. Thereupon, this Review Petition was filed in which one Miscellaneous petition No.202/13 was filed to stay of the order dated 10.1.2012 repatriating the petitioner from JNIMS to Churachandpur Dist. Hospital. While disposing of the said application, the then Acting Chief Justice was pleased to observe that the sole question is as to whether the petitioner by virtue of the above order (2.5.2009) got permanently absorbed at JNIMS without being released from the State service. Subsequently, the matter was heard by the learned single Judge wherein the plea, as has been stated above, was taken by the petitioner of his services being merged/absorbed in JNIMS but it did not find favour and thereby the writ application was dismissed.
Mr. RK Manikanta, learned counsel appearing for the petitioner submits that though at one stage, while hearing Misc. application, arising out of the writ petition, it was observed by the then Acting Chief Justice that issue which cropped up is as to whether the petitioner by virtue of the order dated 2.5.2009 got permanently absorbed at JNIMS but the learned single Judge without deciding this issue rejected the writ petition and thereby committed a gross error which is appeared on the face of record and thereby the order impugned warrants to be reviewed. Further, plea which was taken is that the court, though has observed that the order dated 2.5.2009 never warrants any interpretation but still it has been held that order dated 2.5.09 has nothing to do with the service condition of the Doctor and staff of JN hospital but it has been interpreted otherwise by the Government. Under the circumstances the impugned order is fit to be reviewed.
As against this Mr. A. Bimol, learned counsel appearing for the JNIMS and also learned counsel appearing for the State submits that the contention of the petitioner that by virtue of the order dated 2.5.09 services of the petitioner has been absorbed or would be deemed to have been appointed as an employee of the JNIMS is absolutely unwarranted as the order dated 2.5.2009 never speaks about absorption, rather it relates to transfer of the Doctor and staff of the JN Hospital to the administrative control of the Director of the JNIMS and that order was the first step towards establishment of JNIMS and that in fact those orders dated 16.1.2010 and 10.3.2010 passed subsequent to 2.5.2009 do relate to absorption/ appointment of Doctors and staff of JN Hospital to JNIMS whereby option was asked for from the Doctors and staff of the JN Hospital either to return to Health Department or to be appointed in JNIMS but the petitioner never opted to be appointed at JNIMS and thereby in terms of the order dated 10.3.2010 his services were repatriated to the State Govt. and when he did not obey the order, order of suspension was passed and in that event the learned single Judge was absolutely justified in holding that petitioner was never appointed in JNIMS nor his services has been absorbed in JNIMS.
Before coming to the issue as to whether the Review Application is maintainable or not, it becomes pertinent in the context of the submission made on behalf of the petitioner to answer the plea taken. It is true that the learned single Judge has observed in its order that order dated 2.5.09 being unambiguous does not require any interpretation but in fact after examining the condition put forth under order dt. 2.5.09 it has been found by the learned single Judge that it relates only to transfer of Doctors and staff of JN Hospital under the administrative, academic and disciplinary control of the Director, JNIMS and that was the first step for establishment of JNIMS. As I have noticed above that the learned single Judge after noticing the other orders as mentioned above has been pleased to observe that petitioner never opted for being appointed or being absorbed in JNIMS as was required to be done under order dated 10.3.2010 and thereby he cannot be said to have been appointed as Assistant Professor in JNIMS. That order has been sought to be reviewed on the ground that the order dated 2.5.2009 has not been interpreted in the right perspective meaning thereby that impugned order is being sought to be reviewed on its merit though on number of occasions Mr. RK Manikanta, learned counsel did take the plea that it is an error apparent on the face of the record in spite of plea being taken that order dated 2.5.2009 has not been interpreted in the right perspective and as such finding recorded by the learned single Judge that the petitioner cannot be said to have been appointed in JNIMS or absorbed never suffers from error apparent on the face of the record; rather the impugned order is being sought to be reviewed on the ground that the decision was erroneous on the merit. In that event, Review application cannot be maintained. In this regard, I may refer to a decision rendered in a case of Aribam Tuleshwar Sharma vs. Aribam Pishak Sharma & Ors reported in AIR 1979 SC 1047 wherein scope and parameter of the High Court relating to its power of review has been dealt with. Their lordships had observed in para 3 as follows:
"3. The Judicial Commissioner gave two reasons for reviewing his predecessors order. The first was that his predecessor had overlooked two important documents exhibits A/1 and A/3 which showed that the respondents were in possession of the sites even in the year 1948, 49 and that the grants must have been made even by them. The second was that there was a patent illegality in permitting the appellant to question, in a single writ petition settlement made in favour of different respondents. We are afraid that neither of the reasons mentioned by the learned Judicial Commissioner constitute a ground for review. It is true as observed by this Court in Shivdev Singh and Ors Vs. State of Punjab and ors AIR 1963 SC 1909 there is nothing in Article 226 of the Constitution preclude a High Court from exercising the power of review which inheram in every court of plenary jurisdiction to prevent miscarriage of justice or to correct grave and palpable errors committed by it. But, there are definite limits to the exercise of power of review. The power of review may be exercised on the discovery of new and important matter or evidence which, after the exercise of due diligence was not within the knowledge of the person seeking the review or could not be produced by him at the time when the order was made; it may be exercised where some mistake or error apparent on the face of the record is found; it may also be exercised on any analogous ground. But, it may not be exercised on the ground that the decision was erroneous on merits. That would be the province of a Court of appeal. A power of review is not to be confused with appellate power which may enable an Appellate Court to correct all manner of errors committed by the Subordinate Court.
I may, further, refer to a case decided in a case of M/s Northern India Caterers (India) Ltd. Vs. Lt. Governor of Delhi reported in AIR 1980 SC 674 wherein it has been observed at para 8 as follows:
"8. It is well settled that a party is not entitled to seek a review of a judgment delivered by this Court merely for the purpose of rehearing and a fresh decision of the case. The normal principle is that a judgment pronounced by the Court is final, and departure from that principle is justified only when circumstances of a substantial and compelling character make it necessary to do so. Sajjan Singh v. State of Rajasthan.(1) For instance, if the attention of the Court is not drawn to a material statutory provision during the originalhearig, the Court will review its judgment. G.L.Gupta v. D.N.Mehta. (2) The Court may also reopen its judgment if a manifest wrong has been done and it is necessary to pass an order to do full and effective justice. O.N. Mahindroo vs. Distt. Judge Delhyi & Anr. (2) Power to review its judgments has been conferred on the Supreme Court by Art.137 of the Constitution, and that power is subject to the provisions of any law made by Parliament or the rules made under Art.145. In a civil proceeding, an application for review is entertained only on a ground mentioned in XLVII rule 1 of the Code of Civil Procedure, and in a criminal proceeding on the ground of an error apparent on the face of the record.(Order XL rule 1, Supreme Court Rules, 1966). But whatever the nature of the proceeding, it is beyond dispute that a review proceeding cannot be equated with the original hearing of the case, and the finality of the judgment delivered by the Court will not be reconsidered except "where a glaring omission or patent mistake or like grave error has crept in earlier by judicial fallibility. "Chandra Kanta vs. Sheikh Habid."
On going through the aforesaid judgment, one may find that generally review application is entertained where it appears to the Court that there has been error apparent on the face of the record but at the same time as has been observed by their lordships the court may also reopen its judgment if manifest wrong has been done and it is necessary to pass order to do full and effective justice.
Here in the instant case, as I have said earlier that there does not appear to be any mistake or error apparent on the face of the record nor there appears to be any manifest wrong on the part of learned single Judge while holding that the petitioner has never been appointed or has been absorbed in JNIMS. Thus, this review application, being devoid of any merit, is fit to be dismissed and it is dismissed.
Connected miscellaneous applications shall also stand disposed of .