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2008 DIGILAW 733 (PAT)

Devi Dutta Gupta v. State Of Bihar

2008-05-23

NAVIN SINHA

body2008
Judgment Navin Sinha, J. 1. Heard learned counsel for the petitioners and learned counsel for the State. 2. The petitioners came to this Court assailing their orders of transfer vis-a-vis the private respondents inter alia on the grounds that they were senior to the private respondents and, hence, they were entitled to a posting of their choice. The Establishment Committee recommendations of their places of posting was in consonance with law. The subsequent interference therewith by the Minister were acts of favouritism to accommodate the private respondents rendering the changes arbitrary and mala fide. 3. Orders for status quo had been passed with regard to the transfers earlier by this Court. 4. This Court heard these writ applications together. By judgment and order dated 8.7.2005 this Court opined that in view of the fact that the transfers in question were only by way of a working arrangement made as far back as 2003, in the year mid 2005 there was no justification to interfere with the same when the State was in the process of finalizing the gradation list and regular transfer and postings, which was being monitored by a Bench of this Court being CWJC No. 139/04 (Dr. Arun Kumar Prasad vs. The State of Bihar & Ors.) fixing a deadline of 31.7.2005 for the purpose. This Court, therefore, also declined to go into the question of the legality of the actions of the Minister and allegations of mala fide. The writ applications were dismissed. The matter travelled to the LP.A. Court when it came to be remanded by the Division Bench with the observation that when an issue had been raised, it had to be considered and decided in accordance with law. 5. The matters have therefore been heard afresh. While the present matters were thus pending before this Court, both the issues falling for consideration have been authoritatively decided by a Full Bench of this Court dated 21.2.2006, reported in 2006(1) P.LJ.R. 737 (Dr. Mrs. Sushma Pandey vs. The State of Bihar & Anr.) and analogous cases. 6. Learned counsel for the private respondent No. 4 in CWJC Nos. 14012/03 and 14197 of 2003 sought to persuade this Court that the principles of merit-cum-choice to be followed as laid down by the Full Bench were applicable only at the stage of initial posting after appointment and did not cover transfers and postings made after such initial appointment. 6. Learned counsel for the private respondent No. 4 in CWJC Nos. 14012/03 and 14197 of 2003 sought to persuade this Court that the principles of merit-cum-choice to be followed as laid down by the Full Bench were applicable only at the stage of initial posting after appointment and did not cover transfers and postings made after such initial appointment. This Court does not concur with the same. 7. A judgment is an authority for what it decides and not what may be interpreted on it by extracting lines from passages, torn out of context. That the principle of merit-cum-choice shall apply not only at the time of initial appointment but even subsequent transfer and posting stands authoritatively decided by the Full Bench. There is no occasion for this Court to dwell upon the same. 8. In CWJC No.14141/03 the challenge is similar on the limited ground of interference by the Minister with the recommendations of the Establishment Committee without authority in law, vis-a-vis, respondent No. 5. The counter affidavit on behalf of the respondents states that the Minister acted in exercise of his discretionary power on humanitarian, administrative grounds and in public interest. That no reasons have been assigned by the Minister for the same is an issue which is not dealt with in the counter affidavit at all. 9. In CWJC No. 14197/03 the grounds are similar that the petitioner was senior to respondent No. 5 and therefore in accordance with the principle of seniority-cum-choice he had rightly been given his place of posting by the Establishment Committee which was wrongly interfered with by the Minister without any justification. It is not in controversy that the Establishment Committee acted on basis of the gradation list as then existed. Whether the gradation list was final or tentative, is hardly of any consequence. The action of the respondents will have to be tested on basis of the gradation list as it existed on the day of consideration by the Establishment Committee. In this gradation list, the petitioner was senior to respondent No. 5. The principle of seniority-cum-choice was therefore required to be followed. In CWJC Nos. The action of the respondents will have to be tested on basis of the gradation list as it existed on the day of consideration by the Establishment Committee. In this gradation list, the petitioner was senior to respondent No. 5. The principle of seniority-cum-choice was therefore required to be followed. In CWJC Nos. 14197/03 and 14141/03, the court had called for the original records of the Departments to satisfy itself with regard to the justification, if any, recorded by the Minister for making changes in the recommendation of the Establishment Committee in the background of the observations made in the Full Bench decision in the case of Dr. Sushama Pandey (supra). Despite several adjournments learned Additional Advocate General-2 expressed his helplessness in placing the original records before this Court. In the facts and circumstances, this Court draws an adverse inference with regard to the lack of any grounds for the Minister to interfere with the recommendations of the Establishment Committee. 10. On the issue of the authority of the Minister to interfere with the recommendations of the Establishment Committee, the ratio laid down by the Full Bench applies with equal force in the present writ applipations. No materials have been brought on record with regard to the reasons, if any, much less good and valid reasons for which the Minister disagreed with the recommendation of the Establishment Committee, thus, making the actions arbitrary. 11. In light of the ratio laid down by the Full Bench for transfers and postings on basis of merit-cum-seniority and the scope for the Minister to interfere with the recommendation of the Establishment Committee, on the facts of the present cases the orders of transfer of the petitioners, vis-a-vis, the private respondents stand vitiated and cannot be sustained. The impugned notifications dated 9.12.2003 in CWJC Nos. 14012/03 and 14141/03 and 13.12.2003 in CWJC Nos. 14319/03 and 14197 of 2003 accordingly stand quashed. 12. The petitioners in CWJC 14012 of 2003 & 14319 of 2003 belong to the discipline of Radiology and the petitioner in CWJC 14141 of 2003 belongs to the discipline of Forensic Medicine & Toxicology. This Court is informed that the gradation list of professors in the Department of Radiology, Department of Forensic Medicine & Toxicology has been finalized. 12. The petitioners in CWJC 14012 of 2003 & 14319 of 2003 belong to the discipline of Radiology and the petitioner in CWJC 14141 of 2003 belongs to the discipline of Forensic Medicine & Toxicology. This Court is informed that the gradation list of professors in the Department of Radiology, Department of Forensic Medicine & Toxicology has been finalized. It will be open to the respondent authorities to pass fresh orders in accordance with law and in light of the decision of the Full Bench in the case of Dr. Mrs. Sushma Pandey vs. The State of Bihar & Anr. and analogous cases. 13. The official respondents shall be at liberty to proceed in accordance with law afresh on the issue in CWJC 14197 of 2003 after the gradation list for the discipline of General Surgery is finalized. 14. Since the petitioners had interim orders in their favour, they are naturally entitled to salary for the period in question. This Court, therefore, directs that the salary dues of the petitioners on a representation to be made by them shall be paid within a maximum period of two months from the date of receipt/production of a copy of this order before the authorities. 15. The writ applications stand allowed.