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Judgment
[1] Heard Mr. HS Paonam, learned senior counsel appearing for the petitioner, Mr. Lenin Hijam, learned Addl. AG appearing for the respondents No.
1, 2 & 3 and Mr. Kh. Samarjit, learned counsel appearing for the respondent No. 4.
[2] The present writ petition has been filed assailing the validity and legality of the engagement of the respondent No. 4 to hold the post of Director of
Medical and Health Services, Government of Manipur, on contract basis for a period of 6(six) months after his retirement from service on attaining
the age of superannuation, coupled with a prayer for issuing a direction to the Government for considering the case of the petitioner for his
appointment as Director of Medical and Health Services, Manipur.
[3] The case of the petitioner in brief is that he was initially appointed as Junior Class-I Officer in the Medical Department, Manipur by an order dated
04.06.1988. Subsequently, on the recommendation of the departmental promotion committee meeting held in association with the Manipur Public
Service Commission, he was promoted to MHS Special Grade, vide order dated 21.11.2020 issued by the Under Secretary (DP), Government of
Manipur.
Consequent upon his promotion to MHS Special Grade, the petitioner has been posted as Director of Family Welfare Services, while the respondent
No. 4 has been posted as Director of Medical and Health Services by an order dated 21.11.2020.
[4] As the respondent No. 4 was going to retire from service on attaining the age of superannuation on 30.11.2020, the Manipur Government issued an
order dated 07.11.2020 to the effect that the service of the respondent No. 4 shall be terminated with effect from 30.11.2020.
[5] In view of the eminent retirement of the respondent No. 4 and the resultant anticipated vacancy in the post of Director of Medical and Health
Services, Manipur, the petitioner submitted a representation dated 12.11.2020 to the Chief Secretary, Government of Manipur, requesting to consider
the case of the petitioner for his appointment as Director of Medical and Health Services on the ground, inter alia, that he is the only eligible and senior
most MHS Grade-I Officer and that he is also going to retire from service on attaining the age of superannuation with effect from 28.02.2021.
Thereafter, the petitioner submitted another representation dated 24.11.2020 to the concerned authorities of the Manipur Government, stating, inter
alia, that he is the senior most MHS Special Grade Officer and he is entitled to hold the post of Director of Health Services as have been
conventionally done in the Directorate of Health Services wherein, the senior most Manipur Health Service Special Grade Officer become the
Director of Health Services, Manipur. In the said representation, the petitioner requested the authorities to consider his case for appointment as
Director of Health Services, Manipur, consequent upon the retirement of the respondent No. 4, as the petitioner hardly had 3(three) months of service
before retirement on attaining the age of superannuation.
[6] Later on, the petitioner come to learn that the State Government has taken a decision for allowing the respondent No. 4 to continue functioning as
Director of Health Services, Manipur on contract basis after his retirement on superannuation. It has also been stated that except for the letters dated
01.12.2020, 02.12.2020 and Memorandum dated 03.12.2020 showing the factum of the contract engagement of the respondent No. 4 as Director of
Medical and Health Services, Manipur, the petitioner could not obtain any copy of such decision/order/notification/memorandum allowing the
respondent No. 4 to function as Director of Health Services on contract basis.
[7] The stand of the State Government is that the State Health Department has been taking up all efforts to combat and contain COVID-19 Pandemic
and the respondent No. 4 being Director of Medical and Health Services, Manipur, has been working as (i) Chairman of Technical Committee for
ensuring quality products supply for tacking COVID-19 Pandemic; (ii) Chairman, State COVID dead audit committee; (iii) Chairman of expert
committee of Doctors constituted for inspection, supervision and guidance of Government hospitals and other hospitals dedicated to COVID-19 in the
State of Manipur; (iv) The responsible member in the State task force to establish a co-ordination mechanism and undertaking activities like
assessment of cold chain space and its augmentation and preparation of data base of health care works for introduction of COVID vaccine, etc.
It has also been stated that respondent No. 4 has since been discharging his duties in various capacities for containment of COVID-19 Pandemic and
therefore, the Government considered that during the challenging time due to the ongoing COVID-19 Pandemic, any change/dislocation on the top of
the Directorate of Health Services may have negative impact on the efforts being under taken to combat and contain the COVID-19 Pandemic. It
has, accordingly, been stated that the State Cabinet in its meeting held on 10.11.2020 approved the contractual engagement of the respondent No. 4 to
hold the charge of the post of Director of Medical and health Services, Manipur for 6(six) months beyond his date of superannuation as a part of State
Health Policies.
[8] Mr. HS Paonam, learned senior counsel, submitted that on an earlier occasion, when the State Government re-engaged one Dr. A. Bijoy Singh as
Director of Health Services on contract basis after his retirement from service on attaining the age of superannuation, the respondent No. 4 submitted
a representation to the concerned authorities of the State Government stating, inter alia, that such contract appointment of Dr. A. Bijoy Singh and
allowing him to continue as Director of Medical and Health Services after his retirement on attaining the age of superannuation is in contravention of
provisions under Rule 56 of the FR & SR wherein, it is provided that no Government servant shall be granted extension in service beyond the age of
retirement, that there are numerous functionaries available at the department who are equally equipped to handle any technical or administrative
matter with equal dexterity to handle the intended function and that it will be unfair to them if they are denied the opportunity to shoulder the higher
responsibility, that re-engagement of Dr. A. Bijoy Singh was blocking the chances of other eligible incumbents from availing the chance of getting
posted/promoted to the post of Director of Medical and Health Services and causing a lot of heart burns and discontentment among the sub-ordinate
officer, that Dr. A. Bijoy Singh does not hold any extra ordinary expertise or knowledge that any other sub-ordinate officers does not hold and that the
kind of work or responsibility Dr. A. Bijoy Singh was going to undertake on his re- engagement can also be efficiently and responsibly handled by any
of the sub-ordinate officers, that if it is absolutely necessary to engage the service of Dr. A. Bijoy Singh after his retirement to bring continuity to the
task he had been performing, it can easily be done by engaging him as an officer on special duty/consultant/advisor without jeopardising the chances of
others getting promoted or posted to the post of Director of Medical and Health Services on regular basis, etc.
[9] When no positive response was received from the side of the State Government, the respondent No. 4 filed a writ petition registered as WP(C)
No. 295 of 2014 before this Court challenging the contract appointment of Dr. A. Bijoy Singh as Director of Health Services, Manipur. While
disposing of the said writ petition, this Court held that the appointment of Dr. A. Bijoy Singh as Director, Health Services on contract basis after his
retirement was not sustainable as it not only contravenes FR 56 but also the contract appointment was against the MHS Rules. Accordingly, this Court
quashed the contract appointment of Dr. A. Bijoy Singh and directed the Government to consider the case of the respondent No. 4 for being
appointed/promoted as in-charge Director and to take decision within the period of 1(one) months from the date of communication of the order, vide
judgment and order dated 02.09.2014 passed in WP(C) No. 295 of 2014.
[10] The aforesaid judgment and order dated 02.09.2014 passed by this Court in WP(C) No. 295 of 2014 was challenged by the State Government by
filing SLP(C) No. 26510/2014 before the Hon’ble Supreme Court of India, however, the said SLP was dismissed as the Hon’ble Apex Court
found no ground to interfere with the judgment and order passed by this Court. Thus, the matter attain finality.
Mr. HS Paonam, learned senior counsel submitted that the present case is squarely covered by the judgment and order dated 02.09.2014 passed by
this Court in WP(C) No. 295 of 2014 and accordingly, the re-engagement of the respondent No. 4 to continue as Director of Medical and Health
Services, Manipur on Contract basis after his retirement on attaining the age of superannuation is liable to be quashed and set aside.
[11] The learned senior counsel for the petitioner also submitted that by way of a policy decision, the Government issued an order dated 20.04.2020
imposing a complete ban on extension of service/re- employment of government servant beyond the age of superannuation with effect from the date
of issue of the said order. In the said order, it is also clearly mentioned that the services of those employees which have been extended or who have
been re-employed before issue of the said order shall not be granted any further extension of service/re-employment after the expiry of their current
terms of service/re-employment. Later on, the State Cabinet in its meeting held on 03.04.2017 took a policy decision to do away with the engagement
of government servant/employees after retirement by giving 1(one) month’s notice as per the terms and condition of the contractual agreement
with immediate effect and pursuant to the said policy decision taken by the State Cabinet, the Finance Department, Government of Manipur wrote a
letter dated 11.05.2017 requesting all the departments to comply with the aforesaid policy decision and to submit compliance report.
It is submitted by the learned senior counsel that the said policy decision was taken by the present Government and the same is still in operation. It is,
accordingly, submitted on behalf of the petitioner that the re-engagement of the respondent No. 4 to continue as Director of Medical and Health
Services on contract basis is totally in violation of the aforesaid policy decisions of the Government and accordingly, the contract engagement of the
respondent No. 4 is not sustainable in the eye of law and it is liable to be quashed and set aside.
[12] The learned senior counsel appearing for the petitioner submitted that as per the letter of the Secretariat, Health Department, Government of
Manipur, dated 03.10.2014 the Health Department is the cadre controlling authority of Manipur Health Services (MHS) and the senior most MHS
officer is to be posted as Director of Health Services. In view of such policy of the State Government, the petitioner is entitled to be posted/promoted
as the Director of Medical and Health Services, since the petitioner is the senior most eligible MHS officer in the Manipur Health Services.
[13] In the case of “Ajit Singh (II) Vs. State of Punjab†reported in (1999) 7 SCC 20 9a constituted bench of 5 (five) Judges of the Hon’ble
Supreme Court has held in Para 22 as under:-
“22. Article 14 and Article 16(1) are closely connected. They deal with individual rights of the person. Article 14 demands that the “State shall
not deny to any person equality before the law or the equal protection of the lawsâ€.
Article 16(1) issues a positive command that “there shall be equality of opportunity for all citizens in matters relating to employment or appointment
to any office under the Stateâ€.
It has been held repeatedly by this Court that Clause (1) of Article 16 is a facet of Article 14 and that it takes its roots from Article 14. The said
clause particularises the generality in Article 14 and identifies, in a constitutional sense “equality of opportunity†in matters of employment and
appointment to any office under the State. The word “employment†being wider, there is no dispute that it takes within its fold, the aspect of
promotions to posts above the stage of initial level of recruitment. Article 16(1) provides to every employee otherwise eligible for promotion or who
comes within the zone of consideration, a fundamental right to be “considered†for promotion. Equal opportunity here means the right to be
“considered†for promotion. If a person satisfies the eligibility and zone criteria but is not considered for promotion, then there will be a clear
infraction of his fundamental right to be “considered†for promotion, which is his personal right.
“Promotion†based on equal opportunity and “seniority†attached to such promotion are facets of fundamental right under Article 16(1).â€
Relying on the above judgment of the Apex Court, the learned Senior counsel submitted that being the senior most and eligible candidate for
promotions to the post of Director of Medical and Health Services, Manipur, the petitioner has got a fundamental right guaranteed by Article 14 and
16(1) of the constitution of India to be considered for promotion/appointment to the post of Director of Medical and Health Services, Manipur. It is
further submitted that the engagement of the private respondent as Director of Medical and Health Services on contract basis after his retirement on
attaining the age of superannuation and allowing him to continue as such has deprived the fundamental right of the petitioner as guaranteed by Article
14 and 16 of the constitution.
[14] Mr. Lenin Hijam, learned Addl. AG, Manipur appearing for the respondents No. 1, 2 & 3 submitted that the State Health Department has been
taking up all efforts to combat and contain COVID-19 Pandemic and the respondent No. 4 being the Director of Medical and Health Services,
Manipur has been working as (i) Chairman of technical committee for ensuring quality products supplies for tacking COVID-19 Pandemic; (ii)
Chairman, State COVID dead audit; (iii) Chairman of expert committee of doctors for inspection, supervision and guidance of Government hospital
and other hospitals dedicated to COVID-19 in the State of Manipur; (iv) a responsible member in the State task force to establish co-ordination
mechanism and undertaking activities like assessment of cold chain space and its augmentation and preparation of data based of Health care workers
for introduction of COVID Vaccine, etc. The respondent No. 4 has since been discharging his duties in various capacities for containment of COVID-
19 Pandemic in the State.
[15] Mr. Lenin Hijam draw the attention of this Court to a U.O. note dated 05.09.2020 of the Minister (Health & FW), Manipur wherein it is stated
that as a Director of Medical and Health Services, Manipur right from the beginning of the COVID-19 Pandemic in the State, the respondent No. 4 is
a Head of Department per excellence. It has also been stated that taking into cognizance of his competence in controlling the COVID-19 Pandemic
and avoid any risk for a change of guard of the Department during the sensitive time,the service of Dr. K. Rajo Singh, Director of Medical and Health
Services, Manipur may be extended by re-engaging him as a Director in-charge of Medical and Health Services on contractual basis for a period of
6(six) months after his superannuation from service w.e.f. 30.11.2020 in the absolute interest of the public for containment of the Pandemic.
The learned Addl. AG submitted that on the basis of the aforesaid U.O. note of the Minister (Health & FW), necessary process were taken up and
thereafter, the State Cabinet in its meeting held on 10.11.2020 approved contractual engagement of the respondent No. 4 to hold the charge of the
post of Director of Medical and Health Services, Manipur for 6(six) months beyond his date of superannuation as a part of State Health Policies. It is
further submitted that such contract engagement of the respondent No. 4 has been done as a part of State Health Policies to combat and contain
COVID-19 Pandemic and is not against any of the decisions of the Hon’ble Courts.
[16] Mr. Lenin Hijam, learned Addl. AG, also submitted that as the State Cabinet has decided/approved the contract engagement of the respondent
No. 4 as a part of State Health Policies, the previous ban imposed on contract engagement, etc., has been done away specifically for this particular
case of contract engagement of the respondent No. 4 for 6(six) months beyond his retirement.
[17] It has also been submitted that the petitioner has already been appointed as Manipur Health Services Special Grade Officer on the
recommendation of the DPC and he has been posted as a Director of Family Welfare Services, Manipur and as such the petitioner is not supposed to
have any grievances or not in a disadvantage position due to the contract engagement of the respondent No. 4 as Director of Medical and Health
Services. It is also submitted that the post of the Director of Medical and Health Services and Director of Family Welfare Services are in the same
grade and enjoying the same status and pay and posting of officer holding the post of Director of Family Welfare as Director of Medical and Health
Services does not involved promotions to higher grade. Accordingly, it has been submitted that non-posting of the petitioner as Director of Medical and
Health Services does not mean blocking of the promotion of the petitioner to higher grade.
[18] It has also been contended on behalf of the respondents that the re- engagement of the respondent No. 4 as Director of Medical and Health
Services on contract basis after his retirement is covered by proviso to FR 56 and that similar contract engagement had been resorted to by the State
Government as well as the Central Government and the petitioner has not challenged any of those engagement and the petitioner had filed the present
writ petition with a bias and malafide intention against the respondent No. 4.
[19] By relying on the judgment of this Court in the case of “Letkhomang Khongsai Vs. State of Manipur and others†reported in 2019 (4) GLT
94, it has been vehemently submitted by Mr. Lenin Hijam that the applicability of FR 56 (d) in the matter of appointment on contract basis of a
government servant after his retirement from service on attaining the age of superannuation as well as the judgment and order dated 02.09.2014
passed by this Court in WP(C) No. 295 of 2014 filed by the present respondent No. 4 have been considered by this Court and it has been observed
that no reason had been given by this Court in the case of Dr. K. Rajo Singh (supra) while arriving to the conclusion that the contract appointment of
the respondent No. 2 in that case does not come within the purview of the proviso to article 56 (d). Accordingly, it is submitted that the judgment and
order dated 02.09.2014 passed by this Court in WP(C) No. 295 of 2014 cannot be said to be an authority covering the present case.
[20] Mr. Kh. Samarjit, learned counsel appearing for the respondent No. 4 endorse the submissions advanced by the learned Additional Advocate
General and additionally he submitted that as the writ petitioner did not challenge the Cabinet decision as well as the agreement executed between the
respondent No. 4 and the State Government for his contract appointment, the present writ petition is not maintainable.
 [21] The issue as regards the validity and legality of the State action in the matter of engagement of a government servant as Director of Medical
and Health Services on contract basis after his retirement on attaining the age of superannuation has already been decided by this Court in WP(C)
No. 295 of 2014 filed by the present respondent No. 4 as mentioned hereinabove. Subsequently, the said decision rendered by this Court had been
upheld by the Hon’ble Supreme Court of India. Therefore, in my considered view the matter has attained finality and such issue cannot be re-
opened at this point of time.
The only objection raised by Mr. Lenin Hijam is that in the case of “Letkhomang Khongsai Vs. State of Manipur and Others†(supra), while
considering the judgment and order dated 02.09.2014 passed by this Court in WP(C) No. 295 of 2014 filed by the present respondent No. 4, this Court
made certain observations that no reason had been assigned while arriving to the conclusion about the none applicability of the proviso to FR 56 (d) in
the matter of engagement of a government servant as Director of Medical and Health Services on contract basis after his retirement on attaining the
age of superannuation and as such, the said judgment relied on behalf of the petitioner cannot have a binding precedent to the facts and circumstances
of the present case.
[22] In my considered view, the objections raised by the learned Additional Advocate General cannot be sustainable for the reasons that in the case of
“Letkhomang Khongsai Vs. State of Manipur and Others†reported in 2019 (4) GLT 94 (supra), this Court neither decide the issue about the
applicability of the second proviso to FR 56 (d) in the matter of engagement of a government servant on contract basis after his retirement on attaining
the age of superannuation nor did this Court gave any dissenting view with the judgment and order dated 02.09.2014 passed in WP(C) No. 295 of
2014. This Court merely made an observations that no reason was assigned while coming to the conclusion about the none applicability of second
proviso to FR 56 (d) in the matter of appointment of a government servant as Director of Medical and Health Services on contract basis after his
retirement on attaining the age of superannuation. In fact, the issues were kept opened by this Court to be decided in an appropriate case in future.
The relevant portions of the judgment in the last sub-para of paragraph 8 are as under:-
“8....................
In Dr. Kangujam Rajo Singh case, this court observed that the respondent No. 2 therein did not come within the purview of the proviso under which
the extension could be granted. No reason was assigned by this court to make such an observation, although the word “medical†is used in the
second proviso to FR 56. The respondent No. 2 who is a doctor, was holding the post of Director and therefore, it can definitely be said that the duty
being discharged by him, was medical. The observation that had been made by this court, was that he did not come within the purview of the proviso.
But it is not clear as to how the said observation was made. Was it because of the fact that the respondent No. 2 therein, despite he being a doctor,
did not come within the meaning of the word “specialistâ€. The details are not discernible from the decision. In any case, from the perusal of both
the decisions, it is seen that this court did not examine and consider the meaning of the word “scientific†as mentioned in second proviso to FR-56
in order to see whether the word “engineering†would come within its purview. In Rajkumar Bhegendra Singh case also, this court observed that
the respondent No. 3 therein did not belong to any of the categories of employment on the basis of which the authorities could have invoked the
provisions of FR 56(d). The facts of that case are almost identical to that of the present case except the difference in respect of the post being held by
them. The respondent No. 3 therein was holding the post of Executive Engineer while the private respondent herein was holding the post of Chief
Engineer. But the issue decided by this court in Rajkumar Bhegendra case was as to whether the appointment/re-engagement of the respondent No. 3
therein was permissible under the rules or not and not the issue as to what would be the meaning of the expression “scientific fields†or in other
words, whether the word “engineering†will come within the meaning of the word “scientificâ€. It is well settled that the judicial propriety and
discipline mandates that a decision rendered by a court earlier shall be honoured and respected by it. But a decision cannot be blindly honoured by a
court without knowing as to what was the issue being decided earlier therein. Since this court has not examined the issue as aforesaid in its true
perspective in the said two cases, the decisions rendered therein cannot be said to have provided a correct and appropriate answer to the issue
involved herein and therefore, the issue will be kept open to be decided by this court in an appropriate case in futureâ€.
[23] So far as the submissions made on behalf of the respondents about the non-maintainability of the writ petition due to none challenging of the
Cabinet decision approving the contract engagement of the respondent No. 4 as a part of State Health Policies and the agreement for such contract
engagement is concerned, it is true that the writ petitioner did not challenged specifically such Cabinet decision, however, the petitioner challenged the
executive action of the Government engaging the respondent No. 4 as Director of Medical and Health Services on contract basis and prayed for
quashing the same.
In the case of “State of Punjab Vs. Sodhi Sukhdev Singh†reported in AIR 1961 SC 49,3 a constituted bench of 5 (five) Judges of the
Hon’ble Supreme Court, while considering whether certain documents fall within the category of documents relating to “affairs of Stateâ€, held
that until and unless the decision of the Council of Ministers is communicated to the President or the Governor, as the case may be, in the form of
advise and acted upon by him by issuing orders in that behalf, such decisions of the Council of Ministers are provisional in character and are only part
of the proceedings of the Council of Ministers and nothing more. The relevant paragraph 42 of the judgment is as under:-
“42. Let us then consider whether the documents in question do really fall within the category of documents relating to “affairs of Stateâ€.
Three of the documents the discovery of which the respondent claimed are described as original orders passed by the Pepsu Cabinet on the three
respective dates. It is difficult to understand what was exactly meant by describing the said documents as original orders passed on those dates; but
quite apart from it the very description of the documents clearly indicates that they are documents relating to the discussions that took place amongst
the members of the Council of Ministers and the provisional conclusions reached by them in regard to the respondentâ€s representation from time to
time. Without knowing more about the contents of the said documents it is impossible to escape the conclusion that these documents would embody
the minutes of the meetings of the Council of Ministers and would indicate the advice which the Council ultimately gave to the Rajpramukh. It is
hardly necessary to recall that advice given by the Cabinet to the Rajpramukh or the Governor is expressly saved by art. 163, sub-art. (3) of the
Constitution; and in the case of such advice no further question need to be considered. The same observation falls to be made in regard to the advice
tendered by the Public Service Commission to the Council of Ministers. Indeed it is very difficult to imagine how advice thus tendered by the Public
Service Commission can be excluded from the protection afforded by Sec. 123 of the Act. Mr. Gopal Singh attempted to argue that before the final
order was passed the Council of Ministers had decided to accept the respondentâ€s representation and to reinstate him, and that, according to him, the
respondent seeks to prove by calling the two original orders. We are unable to understand this argument. Even if the Council of Ministers had
provisionally decided to reinstate the respondent that would not prevent the Council from reconsidering the matter and coming to a contrary conclusion
later on, until a final decision is reached by them and is communicated to the Rajpramukh in the form of advice and acted upon by him by issuing an
order in that behalf to the respondent. Until the final order is thus communicated to the respondent it would be open to the Council to consider the
matter over and over again, and the fact that they reached provisional conclusions on two occasions in the past would not alter the character of the
said conclusions. The said conclusions, provisional in character, are a part of the proceedings of the Council of Ministers and no moreâ€.
[24] In the case of “Bachhittar Singh Vs. State of Punjab†reported in AIR 1963 SC 395 ,a constituted bench of 5 (five) Judges of the
Hon’ble Supreme Court held that the decision or advised of the Council of Ministers in regard to a particular matter does not become the action of
the State until the decision or advise of the Council of Ministers is accepted or deemed to be accepted by the Head of the State and order or actions
are issued or taken up in that regard. The relevant portions of the said judgment are as under:-
“8. What we have now to consider is the effect of the note recorded by the Revenue Minister of Pepsu upon the file. We will assume for the
purpose of this case that it is an order. Even so, the question is whether it can be regarded as the order of the State Government which alone, as
admitted by the appellant, was competent to hear and decide an appeal from the order of the Revenue Secretary. Article 166(1) of the Constitution
requires that all executive action of the Government of a State shall be expressed in the name of the Governor. Clause (2) of Art. 166 provides for the
authentication of orders and other instruments made and executed in the name of the Governor. Clause (3) of that Article enable the Governor to
make rules for the more convenient transaction of the business of the Government and for the allocation among the Ministers of the said business.
What the appellant calls an order of the State Government is admittedly not expressed to be in the name of the Governor. But with that point we shall
deal later. What we must first ascertain is whether the order of the Revenue Minister is an order of the State Government i.e., of the Governor. In this
connection we may refer to R. 25 of the Rules of Business of the Government of Pepsu which reads thus:
“Except as otherwise provided by any other Rule, cases shall ordinarily be disposed of by or under the authority of the Minister in charge who may
by means of standing orders give such directions as he thinks fit for the disposal of cases in the Department. Copies of such standing orders shall be
sent to the Rajpramukh and the Chief Minister. According to learned counsel for the appellant his appeal pertains to the department which was in
charge of the Revenue Minister and, therefore, he could deal with it. His decision and order would, according to him, be the decision and order of the
State Government. On behalf of the State reliance was, however, placed on R. 34 which required certain classes of cases to be submitted to the
Rajpramukh and the Chief Minister before the issue of orders. But it was conceded during the course of the argument that a case of the kind before
us does not fall within that rule. No other provision bearing on the point having been brought to our notice we would, therefore, hold that the Revenue
Minister could make an order on behalf of the State Government.
“9. The question, therefore, is whether he did in fact make such an order. Merely writing something on the file does not amount to an order. Before
something amounts to an order of the State Government two things are necessary. The order has to be expressed in the name of the Governor as
required by cl. (1) of Art. 166 and then it has to be communicated. As already indicated, no formal order modifying the decision of the Revenue
Secretary was ever made. Until such an order is drawn up the State Government cannot in our opinion, be regarded as bound by what was stated in
the file. As long as the matter rested with him the Revenue Minister could well score out his remarks or minutes on the file and write fresh ones.
“10. The business of State is a complicated one and has necessarily to be conducted through the agency of a large number of officials and
authorities. The Constitution, therefore, requires and so did the Rules of Business framed by the Rajpramukh of Pepsu provide, that the action must be
taken by the authority concerned in the name of the Rajpramukh. It is not till this formality is observed that the action can be regarded as that of the
State or here, by the Rajpramukh. We may further observe that, constitutionally speaking, the Minister is no more than an adviser and that the head of
the State, the Governor or Rajpramukh, is to act with the aid and advice of his Council of Ministers. Therefore, until such advice is accepted by the
Governor whatever the Minister or the Council of Ministers may say in regard to a particular matter does not become the action of the State until the
advice of the Council of Ministers is accepted or deemed to be accepted by the Head of the State. Indeed, it is possible that after expressing one
opinion about a particular matter at a particular stage a Minister or the Council of Ministers may express quite a different opinion, one which may be
completely opposed to the earlier opinion. Which of them can be regarded as the „order†of the State Government? Therefore, to make the opinion
amount to a decision of the Government it must be communicated to the person concerned. In this connection we may quote the following from the
judgment of the Court in the State of Punjba V. Sodhi Sukhdev Singh, AIR 1961 SC 493 at p. 512:
“Mr. Gopal Singh attempted to argue that before the final order was passed the Council of Ministers had decided to accept the respondentâ€s
representation and to reinstate him, and that, according to him, the respondent seeks to prove by calling the two original orders. We are unable to
understand this argument. Even if the Council of Ministers had provisionally decided to reinstate the respondent that would not prevent the Council
from reconsidering the matter and coming to a contrary conclusion later on, until a final decision is reach by them and is communicated to the
Rajpramukh in the form of advice and acted upon by him by issuing an order in that behalf to the respondents.â€
Thus it is of the essence that the order has to be communicated to the person who would be affected by that order before the State and that person
can be bound by that order. For, until the order is communicated to the person affected by it, it would be open to the Council of Ministers to consider
the matter over and over against and, therefore, till its communication the order cannot be regarded as anything more than provisional in characterâ€.
[25] In the case of “J.P. Bansal Vs. State of Rajasthan†reported in (2003) (5) SCC 134, the Apex Court in para No. 7 & 8 held as under:-
Article 166 of the Constitution deals with the conduct of government business. The said provision reads as follows:
“166. Conduct of business of the Government of a State.- (1) All executive action of the Government of a State shall be expressed to be taken in
the name of the Governor.
 (2) Orders and other instruments made and executed in the name of the Governor shall be authenticated in such manner as may be specified in
rules to be made by the Governor, and the validity of an order or instrument which is so authenticated shall not be called in question on the ground that
it is not an order or instrument made or executed by the Governor.
(3) The Governor shall make rules for the more convenient transaction of the business of the Government of the State, and for the allocation among
Ministers of the said business insofar as it is not business with respect to which the Governor is by or under this Constitution required to act in his
discretion.â€
Clause (1) requires that all executive action of the State Government shall have to be taken in the name of the Governor. Further, there is no particular
formula of words required for compliance with Article 166(1). What the Court has to see is whether the substance of its requirement has been
complied with. A Constitution Bench in R. Chitralekha V. State of Mysore held that the provisions of the article were only directory and not
mandatory in character and if they were not complied with, it could still be established as a question of fact that the impugned order was issued in fact
by the State Government or the Governor. Clause (1) does not prescribe how an executive action of the Government is to be performed; it only
prescribes the mode under which such act is to be expressed. While clause (1) (sic) in relation to the mode of expression, clause (2) lays down the
ways in which the order is to be authenticated. Whether there is any government order in terms of Article 166, has to be adjudicated from the factual
background of each case. Strong reliance was placed by learned counsel for the appellant on L.G. Chaudhari to contend that for all practicable
purposes the decision of the Cabinet has to be construed as a government order, because three of the decisions taken by the Cabinet have been
implemented. As noted above, learned counsel for the State took the stand that neither in the writ petition nor before the High Court, the Cabinet
decision itself was produced. In fact, the Cabinet memorandum and the order of the Cabinet show that no decision was taken to pay any
compensation. In this connection reference is made to the Cabinet memorandum dated 18-3-1993 and Decision 57 of 1999. It was further submitted
that even if it is conceded for the sake of argument that such decision was taken, the same cannot be enforced by a writ petitionâ€.
“8. We need not delve into the disputed question as to whether there was any Cabinet decision, as it has not been established that there was any
government order in terms of Article 166 of the Constitution. The Constitution requires that action must be taken by the authority concerned in the
name of the Governor. It is not till this formality is observed that the action can be regarded as that of the State. Constitutionally speaking, the Council
of Ministers are advisers and as the Head of the State, the Governor is to act with the aid or advice of the Council of Ministers. Therefore, till the
advice is accepted by the Governor, views of the Council of Ministers do not get crystallised into action of the State. (See: State of Punjab V. Sodhi
Sukhdev Singh and Bachhittar Singh V. State of Punjab.) That being so, the first plea of the appellant is rejectedâ€.
[26] In view of the above decisions of the Apex Court, it is crystal clear that the decision of the Council of Ministers in relation to a particular matter
will crystallise into State action only after it is accepted by the Governor and executive orders are issued and communicated to the concerned parties.
Unless and until such decision of the Cabinet is accepted by the Head of the State, such decision of the Cabinet will remain merely as a proceeding of
the Cabinet and nothing more. It, therefore, goes without saying that only after the decision/advice of the Council of Ministers is accepted by the
Governor and executive orders are issued, any person aggrieved by such State action can challenge the same in appropriate proceedings and not
before. It will be sufficient to challenge only the State action and it is not required that the Cabinet decision should also be challenged.
In this view of the matter, since the petitioner has challenged the Executive action/State action, i.e, engagement of the respondent No. 4 as a Director
of Medical and Health Services, Manipur on contract basis, this Court find no substance in the submissions advanced by the counsel for the
respondents that the present writ petition is not maintainable and accordingly, the same are rejected.
 [27] The contention of Mr. Lenin Hijam that the engagement of the respondent No. 4 on contract basis has been done as provided under second
proviso to FR 56 (d) is not tenable for the reason that-
(i) the second proviso to FR 56 (d) contemplates for extension of service of a government servant up to the age of 62 (sixty-two) years and it
nowhere provides for appointment or engagement on contract basis. Moreover, in para 13 of the affidavit filed by the respondent No. 2, it has been
categorically stated that the contract engagement of the respondent No. 4 is not an extension of regular service as Director of Medical and Health
Services with full entitlement of pensionary benefits;
(ii) in the judgment and order dated 02.09.2014 passed by this Court in WP(C) No. 295 of 2014 filed by the present respondent No. 4, this Court has
already held that appointment of a government servant as Director of Medical and Health Services, Manipur on contract basis after his retirement on
attaining the age of superannuation is in contravention of FR 56 and such appointment does not come within the purview of the second proviso to FR
56 (d). The said judgment and order of this Court having been upheld by the Hon’ble Supreme Court has attained finality and such issue cannot be
re-opened again at this point of time.
[28] As regards the issue of the scope of judicial review in interfering with the policy decision, the law is well settled by the Apex Court in a catena of
its judgments. It will suffice to refer to the case of “DDA Vs. Joint Action Committee, Allottee of SFS Flats†reported in (2008) 2 SCC 672
wherein the Hon’ble Supreme Court in para 59 and 60 held as under:-
“59. An Executive order termed as a policy decision is not beyond the pale of judicial review. Whereas the superior courts may not interfere with
the natty grittiest of the policy, or substitute one by the other but it will not be correct to contend that the court shall like its judicial hands off, when a
plea is raised that the impugned decision is a policy decision. Interference therewith on the part of the superior court would not be without jurisdiction
as it is subject to judicial reviewâ€.
“60. Broadly, a policy decision is subject to judicial review on the following grounds:-
(a) if it is unconstitutional;
(b) if it is deâ€hors the provisions of the Act and Regulations;
(c) if the delegatee has acted beyond its power of delegation;
(d) if the executive policy is contrary to the statutory or a larger policyâ€.
[29] Keeping in view, the aforesaid broad guidelines laid down by the Hon’ble Supreme Court for interfering with a policy decision, let us
examined whether the engagement of the respondent No. 4 as Director of Medical and Health Services, Manipur on contract basis after his
retirement on attaining the age of superannuation, which the respondents claims to be a part of State Health Policies, is sustainable or not.
Under FR 56 (a), it is provided that except as otherwise provided in the rule, other government servant shall retire from service on the afternoon of the
last day of the month for which he attains the age of 60 (sixty) years. Under FR 56 (d), it is provided that no government servant shall be granted
extension in service beyond the age of retirement of 60 (sixty) years with provisions for extension of service as provided under the provisos to the said
rules.
[30] As this Court has already held that the provisos to FR 56 (d) are not applicable in the matter of engagement of a government servant as Director
of Medical and Health Services on contract basis after his retirement on attaining the age of superannuation, the engagement of the private respondent
No. 4 as Director of Medical and Health Services on contract basis is in violation of the provisions of FR 56 (d), which is a statutory rule.
[31] In the case of “Ajit Singh (II) Vs. State of Punjab†reported in (1999) 7 SCC 209, (supra), a constituted bench of 5 (five) Judges of the
Hon’ble Supreme Court has held that Article 14 and 16 (1) of the constitution provides to every employee otherwise eligible for promotion or who
comes within the zone of consideration, a fundamental right to be considered for promotion and that if a person satisfies the eligibility and zone criteria
but is not considered for promotion, then there will be a clear infraction of his fundamental right to be considered for promotion, which is his personal
right.
In the present case, it is undeniable fact that the petitioner is the senior most eligible candidate for the post of Director of Medical and Health Services,
Manipur. It is also a fact on record that at the time of complying with the judgment and order dated 02.09.2014 passed by this Court in WP(C) No.
295 of 2014 filed by the present respondent No. 4, the State Government took a stand that State Health Department is the cadre controlling authority
of Manipur Health Services and therefore, the senior most MHS Officer is to be posted as Director of Health Services. In terms of such policy of the
State Government, the senior most MHS Officer was appointed as Director of Medical and Health Services. In view of the above, the petitioner has
got a fundamental right to be considered for his appointment to the post of Director of Medical and Health Services as guaranteed by Article 14 and
16 of the constitution and the act of the respondents in appointing respondent No. 4 as Director of Medical and Health Services on contract basis has
infringed such fundamental right of the petitioner guaranteed by Article 14 and 16 of the constitution.
[32] Moreover, the engagement of the respondent No. 4 as Director of Medical and Health Services, Manipur on contract basis after his retirement is
also totally in contravention of the earlier policy decision of the State Government dated 20.04.2000 and 11.05.2017, which imposed a complete ban on
extension of service/re-employment of government servant beyond the age of superannuation.
In view of the above, this Court has no hesitation to hold that the engagement of the respondent No. 4 as Director of Medical and Health Services on
contract basis after his retirement on attaining the age of superannuation is not only in contravention of the Statutory Rules under FR 56 (d) and the
earlier policy decision of the State Government imposing complete ban on extension of service/re-employment of government servant beyond the age
of superannuation, but it also infringes the fundamental right of the petitioner guaranteed by Article 14 and 16 of the constitution. Accordingly the
engagement of the respondent No. 4 as Director of Medical and Health Services, Manipur on contract basis is quashed and set aside.
[33] The respondents are directed to consider the case of the petitioner for his appointment as Director of Medical and Health Services, Manipur,
within a period of 2 (two) weeks from the date of the receipt of this order. This direction has been given keeping in view that the writ petitioner is also
going to retire from service by the end of February 2021.
With the above directions and observations, the present writ petition is allowed. Parties are to bear their own costs.