Patna High Court
Dr. (Mrs.) Shushma Pandey vs State Of Bihar on 21 February, 2006
Equivalent citations: [2006(2)JCR302(PAT)]
Author: Chandramauli Kr. Prasad
Bench: Chandramauli Kr. Prasad, Shiva Kirti Singh, Chandra Mohan Prasad
JUDGMENT Chandramauli Kr. Prasad, J.
1. Both the appeals under Clause 10 of the Letters Patent have been preferred against the common judgment dated 2.4.2002 passed by a learned Single Judge of this Court in CWJC No. 13816 of 2001; Dr. (Mrs) Sheela Sharma v. The State of Bihar and Ors. and as such, they were heard together and are being disposed of by this common judgment.
2. To put the record straight, LPA No. 171 of 2003 has been filed by the State of Bihar and is barred by limitation. However, an application for condonation of delay is filed and by order dated 5.3.2003, the limitation petition was directed to be considered at the time of admission. In the limitation petition, the State of Bihar has stated the reasons which caused delay in filing the appeal, which grounds, according to the contesting respondents, are not sufficient to condone the delay. Validity pf the order has necessarily to be gone into in the other letters patent appeal and, as such, we are not inclined to dismiss the letters patent appeal preferred by the State on the ground of limitation. We are further of the opinion that the grounds indicated in the limitation petition are sufficient ground for condoning the delay and hence delay in filing the appeal (LPA 171 of 2003) is condoned.
3. Shorn of unnecessary details', facts necessary for the decision are that Bihar Public Service Commission in order to fill up the vacancy of Professors in Obstetrics and Gynaecology in the Medical Education Cadre as provided under Bihar Medical Education Services Cadre and Recruitment of Cadre Posts Rules, 1997 issued an all India advertisement inviting application for the said post. In pursuance of the said advertisement Dr. Sheela Sharma as also Dr. Shushma Pandey, besides other candidates, offered their candidatures. The members of this cadre are posted as teachers in Medical Colleges situated in the State of Bihar. The Bihar Public Service Commission, in order to make its recommendation, took interview on 2.3.2000 and made recommendation in order of merit in the following order:
1. Dr. Sheela Sharma, 2. Dr. Manju Geeta Mishra, 3. Dr. Shushama Pandey, 4. Dr. Shakuntala Sharan
4. The Medical Education and Family Welfare Department of the Government of Bihar sought approval of the Cabinet for appointment of Dr. Sheela Sharma and Dr. Shushama Pandey to the post of Professors in Obstetrics and Gynaeclogy. The Cabinet, on 17.3.2001, granted approval to the appointment of aforesaid two persons as professors. However, the State Government did not notify their appointments and Dr. Sheela Sharma, being aggrieved by that, filed CWJC No. 7424 of 2001; Dr. (Mrs.) Sheela Sharma v. The State of Bihar and Ors. before this Court. This Court by order dated 26.6.2001, disposed of the writ petition in the following words:
8. However, in view of the submission made by learned Government Pleader No. 1 that the necessary notification shall be issued within a month and also keeping in view of the fact that the panel has not yet lapsed by virtue of pending litigation as held by the Apex Court in the case of State of U.P. (supra) respondent No. 2, the Secretary, Department of Medical Education and Family Welfare and indigenous Medicine, Government of Bihar, Patna, is directed to issue necessary notification promoting and appointing the petitioner on the post of Professor in the Department of Obstetrics and Gynecology, pursuant to the recommendation of the Commission and approval of the Cabinet as aforesaid within a period of fortnight from today.
5. There is controversy as to whether Dr. Sheela Sharma as also Dr. Shushama Pandey gave their choice of posting after being asked or volunteered their choice of posting but the fact remains that Dr. Sheela Sharma as also Dr. Shushama Pandey gave their choice of posting at Patna Medical College and Hospital. The issue of posting of the aforesaid two persons was placed for consideration before the Special Establishment Committee in its meeting held on 29.8.2001. It found that three and one posts of Professors sanctioned for Patna Medical College and Hospital and Nalanda Medical College and Hospital, Patna respectively are vacant. Accordingly, bearing in mind, the principle of merit-cum-choice made the following recommendation:
Lfefr us iVuk fd vuq'kflr mEehnokjksa esa MkWa0 ¼Jherh½ 'khyk 'kekZ dzekad&1 ij gSa ,oa mUgksaus viuh bPNk iVuk fpfdRlk egkfo?kky;] iVuk ds fy, fn;k gSa] vr% mudh bPNk ds vuqlkj] pqfd es/kk&lg&bPNk gh bl laca/k esa ekinaM gks ldrk gS] mUgsa iVuk fpfdRlk egkfo?kky;] iVuk esa inLFkkfir djus dh vuq'kalk djrh gS A Mk0 ¼Jherh½ lq"kek ik.Ms; nwljs meehnokj gS mUgksaus Hkh iVuk fpfdRlk egkfo?kky; esa inLFkkiu dh bPNk O;Dr dh gS fdUrq lfefr us ik;k fd vU; fpfdRlk egkfo?kky;ksa esa tc iz/;kid dk in fjDr gS rks iVuk fpfdRlk egkfo?kky;] iVuk esa gh nks&nks izk/;kid jgsa rks fo?kkfFkZ;ks ds iBu&ikBu ds fy, Bhd ugha jgsxk A vr% lfefr us fu.kZ; fy;k fd mUgsa ukyUnk fpfdRlk egkfo?kky;] iVuk esa inLFkkfir fd;k tk; A** (Underlining Mine)
6. The State Government, by notiflcatlon dated 6.10.2001, appointed Dr. Sheela Sharma and Dr. Shushma Pandey as Professors of Obstetrics and Gynaecology and in teeth of the recommendation of the Establishment Committee posted them at Nalanda Medical College and Hospital, Patna and Patna Medical College and Hospital respectively.
7. Dr. Sheela Sharma, hereinafter referred to also as the writ petitioner, aggrieved by the same, preferred writ petition, which has given rise to the present appeal, challenging her posting at Nalanda Medical College and Hospital, Patna and posting of Dr. Shushma Pandey in the Patna Medical College and Hospital, inter alia, contending that according to the policy of the State Government, posting to the post of Professor in Medical College, is to be done by following the principle of merit-cum-choice and she being higher in merit than Dr. Shushma Pandey, hereinafter referred to as contesting respondent as also Dr. Pandey, and her choice being for Patna Medical College and Hospital, she ought to have been posted there in preference to Dr. Pandey, Dr. Pandey, the State Government and its functionary resisted the prayer of the writ petitioner, inter alia pleading that. Bihar Medical Education Service Cadre and Recruitment to Cadre Post Rules, 1997, hereinafter referred to as 'the Rules', do not contemplate posting following the principle of merit-cum-choice. It was further contended that after coming into force of the Rules, the policy of posting on principle of merit-cum-choice ceased to operate and the State Government is not following the principle of merit-cum-choice while posting the members of the Medical Education Cadre in the Medical Colleges.
8. The learned Single Judge by the impugned order held that as the postings have been made in past on the basis of merit-cum-choice and said decision having not been rescinded specifically by the State Government ordinarily, choice posting should not be denied following the principle of merit-cum-choice. The learned Judge further found that the Rules is silent in respect to the posting and the policy of merit-cum-choice was not superseded by the Rules. I deem it expedient to reproduce the words of the learned Single Judge on the aforesaid issues.
There is no dispute at the Bar that the postings have been made on the basis of merit-cum-choice in the past. The Court wanted to know if any conscious decision has been taken to the contrary either in the wake of 1997 Rules or otherwise. Transfer and posting is an executive function with which the Court does not interfere unless it is made in derogation of some statutory rule or is found to be mala fide. This does not mean that posting should be made at the whim of the Government. When in the past the postings have been made on some principle, like merit-cum-choice, the respondents are required to disclosed, at least, that valid reasons existed to deny choice posting to the petitioner. The hearing of the case was adjourned more than once to enable the Standing Counsel to bring on record any conscious decision by which the existing policy of merit-cum-choice has been abandoned or the reasons for making the deviation from that rule. Standing counsel fairly stated, after perusing the file that no such conscious decision has been taken by the Government so far.
It further held as follows:
Having evolved a policy to post the doctor on merit-cum-choice, it cannot be allowed to deviate from the policy except for some valid reasons, nothing of which has been indicated in the counter affidavit or in course of hearing by the Standing Counsel.
The learned Single Judge further found as follows:
The submission that after coming into force of the 1997 Rules the policy of merit-cum-choice posting no more survives is contrary to the stand taken by the Government in the case of Dr. Kameshwar Prasad Pandey, CWJC No. 1201/98. The learned Judge in that case noticed that the 1997 Rule was silent with respect to posting and directed the Government to file affidavit as to whether earlier policy relating to posting on merit-cum-choice stands superseded and whether the Government was contemplating to frame a new rule relating to posting. The Government filed an affidavit stating that "It had decided to post a Professor on the basis of merit-cum-choice as posting of Professor involves promotion an incumbent already posted in a Medical College of the State would be given choice of Medical College other than the existing station of posting. If number of successful incumbents is less than existing vacancies the Government will exercise its discretion to fill up one or the other post according to its administrative exigency on the basis of merit-cum-choice.
It is, thus, clear that as recently as on 22.9.2000 when the abovesaid writ petition was disposed of, the State Government had reiterated the existing policy of posting on merit-cum-choice even after coming of the 1997, Rules. In that view of the matter, I am of the opinion that unless a policy decision is taken to the contrary, the doctors should not ordinarily be denied choice posting depending on his or her position in the merit list.
9. Accordingly the writ petition preferred by Dr. Sheela Sharma was allowed and the State Government was directed to consider her case for posting in accordance with law.
10. Aggrieved by the aforesaid, State of Bihar as also Dr. Pandey have preferred the present appeals.
11. From the judgment of the learned Single Judge quoted above, it is evident that during the hearing of the writ petition, there was no dispute that the postings in the past have been made on the basis of merit-cum-choice but in the present appeal, the State Government has made a somersault and while answering the plea of the writ petitioner of merit-cum-choice, the plea of the State Government, in the words of the secretary is as follows:
No such circular/order could be traced in the department which clearly mentions the policy of merit-cum-choice posting. However, two resolutions of the Government issued vide letter No. 836 (17) dated 12.9.1990 and letter No. 668 (17) dated 2.7.1990 have been brought to my notice which hint at the Government policy of merit-cum-choice posting.
The Secretary further proceeded to state as follows:
7. That it is stated that it has been found that earlier transfer/posting was being done on the merit-cum-choice posting but from last several years, this policy has not been followed. There are instances where merit-cum-choice posting policy has been followed but there are other instances where this policy has not been followed.
12. When the Division Bench of this Court was confronted with the aforesaid plea, it referred to a Division Bench order of this Court dated 19.8.1996 passed in LPA No. 120 of 1994; Dr. Rafat Ali Shakoor v. The State of Bihar and Ors. and that of Dr. Smt. Manju Banker v. The State of Bihar and Ors. 1991 (1) PLJR 663 and finding the ratio of the aforesaid two Division Bench judgments to be contrary to each other and further the stand of the State Government to be not clear, referred the matter for consideration by a larger Bench. That is how, both the appeals have been listed before us.
13. In view of aforesaid following questions fall for our determination.
(i) Whether the State Government has framed policy of merit-cum-choice for posting of teachers in Medical Colleges?
(ii) Whether the policy of merit-cum-choice for posting subsists and not superseded later on?
(iii) Whether the policy of merit-cum-choice, if existed, continued after coming into force of Bihar Medical Education Services Cadre and Recruitment of Cadre Posts Rules, 1997?
(iv) Whether the policy of merit-cum-choice, if existing, can be enforced by issuance of an appropriate writ?
14. We have heard Mr. Shyama Prasad Mukherjee, Senior Advocate on behalf of the State and Mr. Indu Shekhar Prasad Sinha, Senior Advocate in support of the appeal preferred by Dr. Pandey, whereas the writ petitioner Dr. Sharma is represented by Mr. Roy Shivajee Nath, Senior Advocate.
15. Before the learned Single Judge, there was no dispute that in past, the State followed the principle of merit-cum-choice. But before us, vacilating stand has been taken. In paragraph No. 5 of the affidavit filed by the Secretary in the present appeal, the State has taken stand that no circular/order could be traced in the department adopting the policy of merit-cum-choice and at the same time, the secretary had referred to the Resolution No. 836 (17) dated 12.9.1990 and Resolution No. 668 (17) dated 24.7.1990 which according to him show existence of the policy of merit-cum-choice. In paragraph No. 7 of the said affidavit, the Secretary has stated that there was policy of merit-cum-choice which in the subsequent years was not followed.
16. I find it difficult to understand the stand of the State Government. In one breath it says that there is no policy of choice posting, while in the same breath, it states that transfer and posting were made in past following the principle of merit-cum-choice and later on, they have abandoned the said policy. It is agonising to note that the State Government instead of looking into Its own archives and taking a firm stand on its policy has attempted to dig out its policy from the various judgments stored in the record room of this Court. The affidavit of the Secretary does not say that the policy of merit-cum-choice posting does not exist but states that "no circular/order could be traced in the department adopting the policy of merit-cum-choice".
17. In view of aforesaid; we have to consider as to whether there existed policy to post teachers in the Medical College on the principle of merit-cum-choice. There is nothing on record to show as to how and when the policy of merit-cum-choice emanated but the fact remains that while posting teachers in Medical Colleges, the principle of merit-cum-choice was adhered to which would be evident from the resolutions of the State Government in the department of Health, Medical Education and Family Welfare bearing Nos. 668 dated 24.7.1990 and 836 dated 12.9.1990. These resolutions were intended to contain ill effects of the practice of allowing deputation, transfer of teachers from one Medical College Hospital to another and upgradation of posts, on its policy of merit-cum-choice. In this context it is apt to reproduce the relevant portion of the resolution dated 24.7.1990 which reads as follows:
¼2½ essfMdy dkWaystksa esa 'kS{kf.kd inksa ij inLFkkiu vf/keku dze&lg&bPNk ds vk/kkj ij gksrk gSa A vr% in/kkjd lfgr in LfkkukUrj.k ls bl uhfr dk Hkh mYya?ku gksrk gS rFkk foHkkx ij i{kikr dk vkjksi yxkus dh fLFkfr Hkh mRi= gksrh gSa A
18. Further the resolution of the State Government dated 12.9.1990 which is relevant for the purpose reads as follows:
¼d½ fpfdRlk egkfo?kky; ,oa lEc) vLirkyksa esa ojh; ,oa duh; 'kSf{kf.kd inksa ij inLFkkiu ,oa izks=fr vf/keku dze&lg&bPNk ij vk/kfjr gSA vr% fdlh f'{kd dk ,d fpfdRlk egkfo?kky; esa inLFkkiu rFkk nwljs fpfdRlk egkfo?kky; esa izfrfu;qfDr djus ls ftl fpfdRlk egkfo?kky; esa miyC/k fjDr in ds fo:) mudk inLFkkiu gksrk gS og in Hkh dkxth :i ls Hkj tkrk gS ,oa ogkWa 'kS{kf.kd dk;Z okf/kr gksrk gS ,oa lkFk gh tgkWa os izfrfu;qDr gksrs gS ogkWa mudh okLrfod vko';drk ugha gksrh A blds dkj.k dqN fpfdRlk egkfo?kky; esa dkxth :i ls in Hkjs gq;s Hkh gSa ysfdu okLro esa izfrfu;qDr gksdj vU;= pys tkus ds dkj.k ogkWa f'k{kdksa dk okLrfod vHkko gSa A lkFk gh izfrfu;qDr f'k{kd viuh izfrfu;qfDr dsa egkfo?kky; esa Lfkku fjDr gksrs gh fu;fefr :i esa leatu dk nkok is'k djrs gSa A leatu fd;s tkus ij vf/keku dze&lg&bPNk ls inLFkkiu dh uhfr dk mYya?ku gksrks gSA (Underlining mine)
19. The wording and tenor of the resolutions referred to above clearly go to indicate that there existed the policy of merit-cum-choice. Had there been no policy of merit-cum-choice, there was no occasion for the State Government to take decision so that the policy of merit-cum-choice is not breached. To me it is too simple to understand. Question of breach of policy shall arise only when there is policy.
20. Various decisions of this Court, to which I shall refer hereinafter clearly show that there existed the policy of merit-cum-choice, while posting teachers in Medical College. In the case of Dr. (Smt.) Manju Banker v. State of Bihar 1991 (1) PLJR 663, a Division Bench of this Court con-sidered the claim of posting on the policy of merit-cum-choice. In the said case, it has been observed as follows:
From the aforesaid facts it becomes clear that though the petitioner was entitled for consideration in April, 1990 but her case was not considered at that time and the same was considered for the first time on 20.9.1990. On 20.9.1990 admittedly a post was vacant in PMCH and since the petitioner was at the top of the list of remaining candidates in merit list, she was entitled to be considered first and given her choice posting. The petitioner's first choice of posting was PMCH.(Italics mine)
21. Further in the case of Dr. (Smt.) Krishna Choudhary v. State of Bihar and Ors. 1996 (2) All PLR 1095, this Court found existence of such a policy which would be evident from the following passage of the said judgment.
it would also be useful to notice that the policy of the State Government for posting on promotion against a place of choice the basis of seniority-cum-choice of the eligible candidates had also been approved by this Court on different occasions while examining the case of Dr. (Smt.) Manju Banker v. State of Bihar and Ors. 1991 PLJR 663, affirmed by the Supreme Court in 1991 (1) PLJR (SC) 74 and yet another decision in the case of Dr. Ramjee Pandey and Ors. v. State of Bihar and Ors. 1988 PLJR 84.
22. This Court had the occasion to consider this question in the case of Dr. (Mrs.) Ranjana Sinha v. State of Bihar 1996 (2) PLJR 683 and found the issue to be settled that a doctor is to be posted on the promotional post strictly according to merit-cum-choice. In this connection it is apt to reproduce paragraphs 10 and 11 of the judgment:
10. The facts that the petitioner was seniormost in the panel of Assistant Professors, Microbiology, and she had exercised her option for her posting on promotional post in PMCH, Patna are admitted. It is settled that a doctor should be posted on the promotional post strictly according to merit-cam-choice. In this context, it would be pertinent to mention here that this very question, which has arisen for consideration in this case, was settled by this Court in the case of Dr. (Smt.) Manju Banker v. State of Bihar and Ors. 1991 (1) PLJR 663, wherein this Court has held that as per the policy of the State Government for posting on promotion against a vacancy, one has to be posted in a place of choice on the basis of seniority-cum-choice of the eligible candidates. The judgment of this Court in the case of Dr. (Smt.) Manju Banker (supra) has been approved and affirmed by the Supreme Court as reported in 1991 (1) PLJR (SC) 74. Recently, a learned single Judge of this Court, while disposing of bunch of writ applications, being CWJC No. 5372 of 1996, Dr. Smt. Krishna Choudhary and Anr. v. State of Bihar and Ors. and its analogous cases, has held that the posting on promotional post must be done strictly, according to seniority-cum-choice of the eligible candidates. This Court in Dr. (Smt.) Krishna Choudhary, (supra) has also held as follows:
...I would like to clarify that no teacher although eligible for promotion but junior to those who had given choice for posting at a particular place on promotion, can be posted against such place....
11. In the case at hand, it is admitted that the petitioner was the seniormost in the panel of Assistant Professors, Microbiology and she had opted for her posting on promotional post in PMCH, Patna, as per the choice asked for by the department concerned. It is also admitted that when the petitioner had become eligible for the promotional post in the year, 1992 itself, respondent No. 5 was not eligible and he became eligible only in the year 1994. It is also admitted that while passing the order dated 19.1.1996. as contained in Annexure-4, the post of Associate Professor, Micro Biology, was vacant in PMCH., Patna and also in S.K.M, College, Muzaffarpur. In view of these admitted positions the petitioner would have been posted on the promotional post of Associate Professor, Micro-Biology, in PMCH, Patna, according to seniority-cum-choice, as per the decision of this Court and also of the Apex Court, as referred to above.
23. This Court had the occasion to consider the claim of choice posting on the principle of merit-cum-choice in the case of Dr. Kameshwar Prasad Pandey v. State of Bihar and Ors. CWJC No. 1291 of 1999 disposed of on 22.9.2000, and it is apt to reproduce the order dated 24.7.2000 passed in the said case:
In pursuance of Court's order, Mr. Afzal Amanullah, IAS, Secretary, Health, Medical Education and Family Welfare, Government of Bihar, Patna is present in Court. While he submits that earlier the posting against the post of professor used to be made on the basis of merit-cum-choice, states that said provision has not been laid down under the new rule of 1997 which came into effect from 21.5.1997. While he accepts that earlier guideline has not yet been superseded, states that the Government is contemplating to frame a guideline relating to posting. However, it is accepted that no fresh decision taken by the State and mere opinion has been given in the file by way of noting.
The Secretary, Health, Medical -Education and Family Welfare is directed to state the aforesaid fact on oath to place the matter on record.
Place this case for further hearing under the heading for admission on 8th August, 2000, within five cases.
24. In the light of the aforesaid order an affidavit was filed and this Court disposed of the writ application by order dated 22.9.1990 directing the State Government to post Professor on the basis of merit-cum-choice and while doing so it observed as follows:
According to respondent-State, it has been decided to post a Professor on the basis of merit-cum-choice; as posting of professor involves promotion; and incumbent already posted in a Medical College of the State would be given choice of medical college other than the existing station of posting. If number of successful incumbents are less than existing vacancies, the Government will exercise its discretion to fill up one or other post according to its administrative exigency, on the basis of merit-cum-choice.
From the stand taken by the State, it will appear that the respondent-State has decided to continue with old procedure of posting of a professor, on appointment on the basis of merit-cum-choice.
25. The judgments of this Court referred to above and the facts emanating from that clearly go to suggest that there existed the policy of merit-cum-choice for the purpose of posting of teachers in the Medical Colleges. True it is that in the cases referred to above Court was not called upon to adjudicate about the existence of policy but granted relief keeping in view the policy of merit-cum-choice. Here it is apt to refer a Division Bench decision of this Court in the case of Dr. Rafat All Sakur v. State of Bihar and Ors. (LPA 120 of 1994 disposed of on 19.8.1996). The Division Bench in the said case was dealing with the claim of choice of place of posting on the basis of seniority and while dismissing the appeal this Court observed as follows:
It is his submission that the posting must be done in accordance with the choice of the concerned eligible candidates, the seniormost having the first choice. The appellant, therefore, wanted that he should be posted at Patna, but contrary to his choice, he was posted at Ranchi.
No rule, circular or policy decision has been shown to us that there is any such rule or policy that the seniormost teacher will have a choice in the matter of his posting.
26. Relying on the aforesaid passage Mr. Mukherjee as also Mr. Sinha contend that this Division Bench judgment runs counter to the decisions referred to above and hence it has to be held that no policy of merit-cum-choice exists. I do not find any substance in this submission. In the case of Dr. Rafat Ali Sakur (supra) this Court had not adjudicated that policy of merit-cum-choice does not exist but declined to grant relief to the appellant on the ground that no Rule, Circular or Policy that the seniormost teachers will have a choice in the matter of posting was brought to their notice. Hence in my opinion, this judgment, as a proposition of law or as a matter of fact does not lay down that no policy exists to give posting on the principle of merit-cum-choice. In the case of Dr. Manju Banker (supra). Dr. (Smt.) Krishna Choudhary (supra), Dr. (Smt.) Rajana Sinha (supra) and Dr. K.P. Pandey, (supra) on adjudication of the fact that principle of merit-cum-choice exists, relief was granted. While going through the judgment in the case of Dr. Rafat Ali Sakur, it is evident that the earlier decisions of this Court were not brought to their notice. Taking into consideration entire conspectus, I am of the opinion that policy of merit-cum-choice did exist.
27. Mr. Mukherjee as also Mr. Sinha contend that the policy of the State cannot be deciphered from the judgment or the affidavits but has to be expressed by duly authenticated executive order. They point out that when no executive decisions, duly issued have been brought on record it has to be held that no policy exists and the affidavit deserves to be rejected outright. In this connection our attention has been drawn to Article 166 of the Constitution of India and it has been contended that all executive action of the Government of a State has to be expressed to be taken in the name of Governor and order made in the name of Governor has to be authenticated in the manner specified in the Rules of Executive Business. They contend that no such document has been brought on record. I do not find any substance in the submission of the learned counsel.
28. I have held earlier that the policy of merit-cum-choice existed from before which got concretised by issuance of the resolutions dated 24th of July, 1990 and 12th of September, 1990, to which I have referred in the preceding paragraphs of my judgment. The aforesaid resolutions have been expressed in the name of Governor and authenticated in accordance with the Rules of Executive business. Therefore, I am of the opinion that authenticated orders expressed in the name of the Governor existing providing for posting on the principle of merit-cum-choice. To me it seems plain that de facto the policy of merit-cum-choice was followed even prior to the issuance of the resolutions aforesaid and the same got conscretised by issuance of duly authenticated order expressed in the name of Governor by the aforesaid two resolutions. One has to bear in mind that this is not a case in which the question of choice posting is being considered midway in service but the choice of place of posting at the time of initial appointment on the basis of merit. It seems to attract teachers in the Medical Colleges the State had adopted the policy of merit-cum-choice to avoid exodus and arbitrariness. To me the principle sounds laudable.
29. In view of the discussion aforesaid, the first question posed at the outset is answered in affirmative and it is held that there exists the policy of merit-cum-choice in posting of teachers of Medical Education Cadre in Medical Colleges.
30. Mr. Sinha, alternatively submits that even if the policy of merit-cum-choice is considered existing, same emanated from the resolution dated 3.3.1975, and in his words after the issuance of the resolution dated 26.10.1991 the policy of choice posting was abolished, lock, stock and barrel. It is relevant there to state that the resolution dated 26.10.1991 had rescind the earlier resolutions dated 3.3.1975 and 8.6.1984. Resolution dated 3rd of March, 1975 is in relation to debarring junior teachers for not joining the place of posting effected on the basis of merit-cum-choice and resolution dated 8,6.1984 is also in relation to disqualifying a person for promotion for a particular period and the resolution dated 26.10.1991 extends the period of disqualification and in no way it supersedes the policy of the State of merit-cum-choice. In my opinion, policy like the present one can be rescinded specifically or by necessary implication and a conscious decision has to be taken on this issue. No particular document, order of resolution has been brought to our notice from which it can be deciphered that the policy of merit-cum-choice has been either superseded directly or impliedly.
31. Accordingly, answer to the second question set out at the outset is answered in the negative and it is held that policy of merit-cum-choice has not been superseded either directly or by implication by any subsequent decision.
32. It is relevant here to state that in order to streamline the Medical Education and for filing up the junior and senior teaching posts, the Governor, in exercise of the power conferred under Article 309 of the Constitution of India framed the Rules. Rule 8 (gha) provides for appointment to the post of Professor on the basis of an All India advertisement. Rule 11, as it was originally made, provided for compulsory transfer of an Assistant Professor, Associate Professor and Professor from one Medical College to another after interval of five years. However, this Rule 11 has later on been superseded.
33. Mr. Mukherjee as also Mr. Sinha contend that non-mentioning of the policy of merit-cum-choice in posting in the Rules and the amendment made therein, is nothing but conscious exclusion and as such, reading the policy of merit-cum-choice of posting in the Rule shall be in the teeth of well known maxim of interpretation, that is, casus omissus. In support of the submission, reliance has been placed in the case of Commissioner of Sales Tax, U.P. Luck-now v. Parson Tools and Plants, Kanpur and our attention has been drawn to paragraph No. 16 from the said judgment which reads as follows:
16. If the Legislature wilfully omits to incorporate something of an analogous law in a subsequent statute, or even if there is a casus omissus in statute, the language of which is otherwise plain and unambiguous, the Court is not competent to supply the omission by engrafting on it or introducing in it, under the guise of interpretation, by analogy or implication something what is thinks to be a general principle of justice and equity. To do so "would be entrenching upon the preserves of Legislature", the primary function of a Court of law being jus dicere and not jus dare.
34. Yet another decision on which reliance has been placed, is the judgment of the Supreme Court in the case of Union of India and Anr. v. Deoki Nandan Agrawal AIR 1992 SC 96.
14. We are at a loss to understand the reasoning of the learned Judges in reading down the provisions in paragraph 2 in force prior to November 1, 1986 as "more than five years" and as "more than four years" in the same paragraph for the period subsequent to November 1, 1986. It is not the duty of the Court either to enlarge the scope of the legislation or the intention of the legislature when the language of the provision is pain and unambiguous. The Court cannot rewrite, recast or reframe the legislation for the very good reason that it has no power to legislate. The power to legislate has not been conferred on the Courts. The Court cannot add words to a statute or read words into it which are not there. Assuming there is a defect or an omission in the words used by the legislature the Court could not go to its aid to correct or make up the deficiency. Courts shall decide what the law is and not what it should be. The Court of course adopts a construction which will carry out the obvious intention of the legislature but could not legislate itself. But to invoke judicial activism to set at naught legislative judgment is subversive of the constitutional harmony and comity of instrumentalities.
35. Reliance has also been placed on a decision of the Supreme Court in case of Assistant Commissioner, Assessment-II, Bangalore and Ors. v. Velliapapa Textiles Ltd. and Ors. and our attention has been drawn to para-14 of the said judgment which reads as follows:
14. It is a basic principle of criminal jurisprudence that a penal statute is to be construed strictly. If the act alleged against the accused does not fall within the parameters of the offence described in the statute the accused cannot be held liable. There is no scope for intendment based on the general purpose or object of law. If the Legislature has left a lacuna, it is not open to the Court to paper it over on some presumed intention of the Legislature. The doctrine of casus omissus, expressed in felicitous language in CST v. Parson Tools and Plants If the legislature wilfully omits to incorporate something of an analogous law in a subsequent statute, or even if there in a causus omissus in a statute, the language of which is otherwise plain and unambiguous, the Court is not competent to supply the omission by engraving on it or introducing in it, under the guise of interpretation, by analogy or implication, something what it thinks to be a general principle of justice and equity. To do so "would be entrenching upon the preserves of legislature." (at p. 65 in Prem Nath L. Ganesh v. Prem Nath, L. Ram Nath , per Tek Chand, J.). The primary function of a Court of law being jus dicere and not jus dare.
36. Reference has also been made to the decision in the case of Delhi Financial Corporation and Anr. v. Rajiv Anand and Ors. and our attention has been drawn to paragraph No. 17 of the judgment which reads as follows:
17. In support of the submission that the legislature did not intend to apply Section 32-G to a surety, reliance was placed upon the case of P.K. Unni v. Nirmala Industries, wherein it has been held that the Court must proceed on the assumption that the legislature did not make a mistake and that it intended to say what it said. It was held that assuming there is a defect or an omission in the words used by the legislature, the Court cannot correct or make up the deficiency. It was held that the Court cannot add words to a statute or read words into it which are not there, especially when a literal reading thereof produces an intelligible result. It was held that the Court is not authorised to alter a word or provide a casus omissus. Reliance was also placed on the case of Union of India v. Elphinstone Spg. and Wvg. Co. Ltd. which is to a similar effect. There can be no dispute with these propositions. It is on this/basis that this Court is holding that words cannot be added in Section 32-G. To accept Mr. Mehta's submission would require this Court to add words to Section 32-G to the effect "due from the industrial concern" after the words "amount due to the financial corporation." It is presumed that the legislature made no mistake when it omitted to use these words. It is presumed that the legislature intended what it said, namely, that Section 32-G is to apply wherever any amount is found due to the financial corporation.
37. There is no difficult in accepting the broad submission advanced by Mr. Mukherjee and Mr. Sinha that omission ordinarily cannot be supplied by the Courts and Court would not add words in statute or re-write words into it. It has further to be presumed that the legislature or the rule making authority does not make mistake while legislating or making rules. But there is no presumption that a casus omissus exists and language permitting Courts should avoid creating a causes omissus where there is none. It has to be borne in mind that when the earlier rule does not govern the field, the principle of casus omissus does not get, in any way, remotely attracted. Here in the present case, no earlier rule made under Article 309 of the Constitution of India has been brought to our notice which, in any way, has bearing on the issue of posting on the principle of merit-cum-choice. It has to be remembered that for applying the maximum casus omissus one has to see that the Legislature had wilfully omitted to incorporate something of an analogous statute in a subsequent statute, no analogous statute has been brought to our notice dealing with the issue of posting on merit-cum-choice basis. In view of what I have found above, I deem it inexpedient to analyse the individuals judgments referred to above. In such circumstances, I arm of the opinion, that the principle of casus omissus is, in no way, attracted. I am further of the opinion that the field was not covered earlier by any enactment or the rule and in that view of the matter, the rule making authority not providing for posting on the principle of merit-cum-choice in the Rules, does not attract the principle of casus omissus and I would refrain from creating a casus omissus where there is none.
38. The analysis aforesaid leads me to conclude that the principle of merit-cum-choice in posting has not been abrogated by the Rules and answer to question No. 3 at the outset is rendered in affirmative and it is held that existing policy of merit-cum-choice continues after coming into force of the Bihar Medical Education Services Cadre and Recruitment of Cadres Posts Rules, 1997.
39. Mr. Mukherjee as also Mr. Sinha contend that transfer and posting of an employee is the prerogative of the State Government and no right is conferred on an employee to claim a particular place of posting. They contend that even if the State Government calls for option for place of posting, it is not bound to accept the same. Accordingly, they contend that transfer and posting being an incident of service and no legal right being conferred on the Government employee, no mandamus can be issued to enforce the right. In support of the submission, reliance has been placed on a decision of the Supreme Court in the case of State of Bihar v. Kaushal Kishore Singh and Ors. 1999 (1) PLJR 5 (SC) and our attention has been drawn to the following passage from para-5 of the judgment which reads as follows:
5. x x x Even if options were called for and given, it is not mandatory for the Government to accept options of the candidates and make appointment to the post. Asking for option of candidate is only a discretionary matter and the Government is not bound to select the candidates on the basis thereof. Under these circumstances, the candidates who applied for, though opted for, have no acquired rights, much less indefeasible and absolute right for selection or appointment to a particular post. As stated earlier, the Government have to prescribe an objective and rational method or manner of allotment of the candidates selected to the departments, depending upon their job necessity and requirement. x x x
40. It is well settled that for issuance of a writ in the nature of mandamus, there must be a legal right to the person seeking relief and upon the State the corresponding legal obligation. One has to bear in mind that here, we are dealing with a case in which desired place of posting is sought on the basis of merit-cum-choice. On facts, 1 have found that the State has adopted policy of merit-cum-choice in case of initial posting of employees of the Medical Education Cadre. In my opinion, in a case in which the policy of the State is linked with the merit of a candidate, in that case, the choice of place of posting depending upon the merit, has to be adhered to. Such right of an employee based on merit becomes a legal right and in view of the policy, latter has legal obligation to carry out the same. In sum and substance, when a place of posting is to be decided on the basis of merit, a member of the Medical Education Cadre, higher in merit, has a legal right to be given the choice place of posting in preference to the person lower in merit and the State has to bear the corresponding legal obligation and in such situation, the right can be enforced by issuance of a writ in the nature of mandamus.
41. It is true that every policy of State like any rule may not be totally mandatory. But provisions like choice of place of posting on the basis of merit tend to create some right in the person found more meritorious. In such a situation, though the policy is not comprehensively drafted, it obliges the State to adhere to it in normal situations unless there be good reasons for acting at variance.
42. It is well settled that every action of the State has to be just and fair and cannot be arbitrary. Every order which is arbitrary, is in breach of Article 14 of the Constitution of India. When the State has followed the policy of merit-cum-choice in case of others, in the absence of any valid reason, denying the writ petitioner Dr. Sheela Sharma her choice place of posting based on merit can only be said to be arbitrary.
43. It is relevant here to state that no reason was brought to the notice of the learned Single Judge for deviating from the aforesaid principle. Before us, certain enquiry said to have been initiated against the writ petitioner Dr. Sheela Sharma and lodging of a criminal case concerning her personal misdemeanour have been sought to be projected to contend that the State Government did not err in not adhering to the principle of merit-cum-choice in her case. All these events have no bearing in regard to the place of posting and as such are not germane to the issue in question. Further the record do not show that these facts were considered by the State Government while declining the request of Dr. Sheela Sharma for her posting at Patna Medical College and Hospital. The record do not reveal that the State Government had not chosen in its wisdom to post Dr. Sheela Sharma in Patna Medical College and Hospital on any administrative ground or in public interest.
44. To conclude, the answer to question No. (iv) set out at the out-set is rendered in affirmative and it is held that the policy of merit-cum-choice can be enforced by issuance of a writ in the nature of mandamus.
45. After answering-the four questions posed at the outset, it is difficult to overlook a glaring peculiarity in the stand of State of Bihar in this case. If the State was really aggrieved due to the finding of learned Single Judge that no conscious decision has been taken by the Government so far by which the existing policy of merit-cum-choice has been abandoned, at least during the last three and half years it could have taken a conscious decision to that effect without prejudice to its stand in these appeals. But no such subsequent development has taken place, obviously, the policy is serving some useful purpose or it could have been abandoned without much difficulty from a prospective date. Nothing further need be stated on this aspect.
46. To put the record straight, Mr. Sinha had pleaded for setting aside the order of the learned Single Judge on the ground that the writ application filed before this Court itself, was not maintainable being hit by the principle of constructive resjudicata. He emphasises that the principle of res judicata applies in la writ proceeding and although this question was raised before the learned Single Judge but the same has not been answered. It has been pointed out that the question of res judicata being a question of jurisdiction, can be raised in these appeals also. In support of the submission, reliance has been placed on a decision of the Supreme Court in the case of Har Swarup v. The General Manager, Central Railway and Ors. and our attention has been drawn to para-16 of the judgment which reads as follows:
16. It would appear from Ext. 1 that the reliefs claimed by the petitioner in Special C.A. 182 of 1971 were exactly the same as in the present case. The grounds covered were also identical. The High Court held that the petitioner was not entitled to any relief and dismissed his writ application. He failed in getting a chance to appeal to this Court from the judgment of the Bombay High Court. In such a situation it has got to be held that the petitioner's claim is barred by the principles of resjudicata vide Daryao v. State of U.P , and Virudhunagar Steel Rolling Mills v. Government of Madras .
47. Reliance has also been placed on a decision of the Supreme Court in the case of Mysore State Road Transport Corporation v. Babajan Conductor and Anr. and our attention has been drawn to para-12 of the said judgment which reads as follows:
12. Indeed, in the case now before us, the Corporation's legal position rests on a stronger footing than it did in the case cited above inasmuch as the declaratory relief asked for by the first respondent against the Corporation had not been granted. That relief would, therefore, be deemed to have been refused. The first respondent did not himself go up in appeal against that decision. He cannot claim such a relief in subsequent writ petition now before us.
48. In this connection, our attention has been drawn to the relief sought for by the writ petitioner in the earlier writ application CWJC No. 7424 of 2001 Dr. (Mrs.) Sheela Sharma v. State of Bihar and Ors. disposed of on 26.6.2001. It has been pointed out that in the said case, the writ petitioner sought for her posting at Patna Medical College Hospital and the said relief having not been granted, the present writ application which has given rise to this appeal itself, was not maintainable being in teeth of the principle of constructive resjudicata.
49. I do not have the slightest hesitation in accepting the broad submission of Mr. Sinha that the principle of resjudicata with all its tenets apply in the case of writ proceeding also. I hasten to add that in view of explanation inserted in Section 141 of the Code of Civil Procedure, Section 11 of the Code does not in terms apply in writ proceeding but the principle does apply. Reference in this connection can be made to a decision of the Supreme Court in the case of G.K. Dudani and Ors. v. S.D. Sharma and Ors. , wherein it has been held as follows:
18. In view of this categorical finding in Chauhan's case, it was not open-to the direct recruits to reagitate this point. Although by reason of the Explanation which was inserted in Section 141 of the Code of Civil Procedure, 1908, by the Code of Civil Procedure (Amendment) Act, 1976, Section 11 of the Code does not in terms apply to any proceeding under Article 226 of the Constitution, the principle of res judicata does apply to all writ petitions under Article 226. This point was therefore, barred by the principle of res judicata and should never have been allowed by the High Court to be reagitated.
50. Without going into the question as to whether this point was raised before the learned Single Judge, we proceed on the assumption that it was so raised and I proceed to consider this question in the present appeals. As stated earlier, the principle of res judicata does apply in writ proceedings also but the question is as to whether, in the facts of the present case, this principle is attracted. For application of principle of res judicata, one thing essential is adjudication of an issue which has directly and substantially came up for consideration in the earlier proceeding.
51. True it, is that in the earlier proceeding, the writ petitioner prayed for her posting at Patna Medical College Hospital and that writ application was filed when after the recommendation of the Commission, the State was not issuing notification making appointment to the post of Professor. This Court, in view of the stand taken by the State Government that necessary notification shall be issued within a stipulated period, disposed of the writ application directing the State Government to appoint her to the post of Professor in the Department of Obstetrics and Gyanaecology. This Court, in the earlier writ application, did not at all advert to the claim made by the writ petitioner for her posting at Patna Medical College Hospital and did not adjudicate the question of posting on the principle of merit-cum-choice. In the absence of any adjudication by this Court in the earlier writ proceeding, which in my opinion is sine qua non for the application of principle of res judicata, I am of the opinion that the principle of res judicata, is not remotely attracted in the facts and circumstances of the case. For the application of principle of constructive res judicata, adjudication on the issue of posting on the principle of merit-cum-choice ought to have been necessary but in fact it was not, at all, necessary in view of the order which this Court had passed in the earlier writ application.
52. Even at the cost of repetition, I may state herein that in the earlier writ application filed by the writ petitioner, this Court directed for issuing notification for promotion to the post of Professor and for that purpose, it was neither necessary nor desirable to go into the claim of posting on the principle of merit-cum-choice. Accordingly, I am of the opinion that the writ application which has given rise to the present appeal was maintainable and not hit by the principle of res judicata or constructive res judicata.
53. Mr. Sinha feebly attempted to argue that appellant Dr. Sushma Pandey is senior to the writ petitioner Dr. Sheela Sharma and hence, the entire claim is thus on nonexistent fact. In view of the fact that the claim of inter se seniority between the party is the subject matter of a separate proceeding, we refrain ourselves from going into this question in the present proceeding. Suffice it to say that appointment in question was made on the basis of the recommendation of the Commission in which the name of writ petitioner Dr. Sheela Sharma is higher in merit than that of appellant Dr. Sushma Pandey.
54. Mr. Roy Shivajee Nath submits that the present appeal filed by Dr. Sushma Pandey is not maintainable and deserves to be dismissed on the ground that no cause subsists. He points out that there are more than one post of Professors in the Department of Obstetrics and Gynaecology in the Patna Medical College Hospital and she has not been transferred even after the posting of Dr. Sheela Sharma in that Hospital. As such, according to him, she had no cause to challenge the direction given by the learned Single Judge to post Dr. Sheela Sharma at the said Hospital. I do not find any substance in the submission of Mr. Nath.
55. True it is that Dr. Sushma Pandey has not been transferred from Patna Medical College Hospital and in case, the judgment of the learned Single Judge is not challenged, writ petitioner Dr. Sheela Sharma, as a matter of right, has to be posted in the said Hospital, which posting; in fact, has been made during the pendency of the appeal and in such circumstance, the State Government may chose to transfer Dr. Sushma Pandey to another Medical College and hence, in my opinion, she had cause to challenge the judgment rendered by the learned Single Judge. The writ petitioner herself had chosen to implead Dr. Sushma Pandey as respondent in the writ application and when the judgment had gone in her favour, she cannot be permitted to contend that Dr. Pandey has no cause to challenge the judgment in appeal.
56. Mr. Nath also attempted to argue that Dr. Sushma Pandey is not fit for appointment as professor. It is common ground that this question is also an issue in a separate proceeding pending between the parties and as such, I consider it inexpedient to go into the said question in the present proceeding. Further, the present action which has given rise to these appeals, was primarily in regard to the claim of a choice posting on the basis of merit and this also dissuades me not to go into this question.
57. The writ petitioner and her adversary have also joined issue on the question as to whether the recommendation made by the duly constituted Establishment Committee is or is no binding on the State. The writ petitioner contends that the recommendation made by the Establishment Committee was on a sound principle of merit-cum-choice and the State Government ought to have accepted the same whereas the State Government and Dr. Sushma Pandey contend that it is within the prerogative of the State Government either to accept or not to accept, I am of the opinion that the State cannot do whatever it likes and its decision has to be guided by reasons. The decision taken without any reason is nothing but an arbitrary decision. Therefore, I am of the opinion that ordinarily the recommendation of the Establishment Committee shall be binding on the State Government. However for good and valid reasons the recommendation of the Establishment Committee may not be accepted and when challenge is made the reason must appear on the face of the record. The State Government, in its action, has to be fair and just and for better administration, it is essential that before giving a go-bye to the recommendation of the Establishment Committee, it assigns good and valid reason. The authority to disagree with the recommendation of the Establishment Committee is one thing, than to say that the State Government can disagree with the recommendation of the Establishment Committee on whims and caprice.
58. The writ petitioner Dr, Sheela Sharma had made an issue of engagement of a Counsel other than the State Counsel also to show mala fide on part of the State. It is for a litigant to engage a Counsel of its choice and the State also falls within the category of a litigant before this Court and hence, mere engagement of a Counsel other than the counsel of the state shall, ipso facto, not mean that the action of the State is malafide.
59. In the result, I do not find any merit in both the appeals and they are dismissed but without costs.
Shiva Kirti Singh, J.
I agree with brother Chandramauli Kr. Prasad.
Chandra Mohan Prasad, J.
1. In exercise of power under Article 309 of the Constitution of India the Government of Bihar, vide notification dated 21.5.1997 of the Health, Medical Education and Family Welfare Department promulgated Bihar Medical Education Service Cadre and Recruitment of Cadre Post Rules, 1997 for the purpose of appointment/promotion of teachers in different medical colleges and hospitals of the State. This notification was declared to be effective from the date of its publication in the official gazette. This notification was published in the extraordinary issue dated 24.5.1997 of the Bihar Gazette. As provided under the rules All India Advertisement was issued inviting application for appointment to the post of professor in the Medical Colleges/Hospitals. In response to the advertisement (Dr. Sheela Sharma) and Dr. Smt. Shushma Pandey had also applied amongst others. The Bihar Public Service Commission in order to make its recommendation, conducted interview on 2.3.2000 and made its recommendation for appointment to the post of professor in the following order:
1. Dr. Smt. Sheela Sharma
2. Dr. Manju Geeta Mishra
3. Dr. Shushma Pandey
4. Dr. Shakuntla Sharan
2. On this recommendation of the Public Service Commission, the Health, Medical Education and Family Welfare Department, vide its notification dated 6.10.2001 appointed Dr. Smt. Sheela Sharma, Associate Professor, Nalanda Medical College and Hospital, Patna and Dr. Shushma Pandey, Associate Professor, Patna Medical College and Hospital, Patna as professors and posted them respectively in the obstetrics and Gynaecology Department, Nalanda Medical College and Hospital, Patna and Patna Medical College and Hospital, Patna.
3. Dr. Mrs. Sheela Sharma filed CWJC No. 13816 of 2001 contending that she being at serial No. 1 in the merit list of the Bihar Public Service Commission and that she had given her choice for posting as professor in the PMCH, Patna hence she was entitled to be posted in PMCH, Patna on the basis of the principles of merit-cum-choice posting and she prayed for issuance of a writ of mandamus to the "respondent State of Bihar in that writ for posting her as a professor in the PMCH on the basis of her choice due to being senior to Dr. Shushma Pandey. The respondent State resisted the claim of Dr. Mrs. Sheela Sharma. Vide judgment dated 2.4.2002 in the aforesaid CWJC No. 13816/2001 the Single Judge of this Court accepted the claim of the writ petitioner Dr. Mrs. Sheela Sharma and decided the case with some observation in the nature of mandamus directing the respondent State to consider her posting as professor in the PMCH, Patna. Being aggrieved by the judgment of the Single judge the respondent under the writ namely Dr. Mrs. Shushma Pandey and the State of Bihar and others filed respective LPA Nos. 616 of 2002 and 171 of 2003 contending that there was no rule or law constituting a legal right in the writ petitioner entitling her to claim her posting at a place of her choice on the principles of merit-cum-choice posting and a prayer was made to set aside the judgment of the Single Judge.
4. While allowing the prayer of the writ petitioner the single judge of this Court mentioned in this judgement:
There is no dispute at the Bar that the postings have been made on the basis of merit-cum-choice in the past. The Court wanted to know if any conscious decision has been taken to the contrary either in the wake of 1997 rules or otherwise. The transfer and posting is an executive function with which the Court does not interfere unless it is made to derogation on some statutory rule or is found to be malafide. This does not mean that posting should be made at the whim of the Government when in the past the postings have been made on some principles, like "merit-cum-choice" the respondents are required to disclose, at least, that valid reasons existed to deny choice postings to the petitioner. The hearing of the case was adjourned more than once to enable the Standing Counsel to bring on record any conscious decision for which the existing policy of merit-cum-choice has been abandoned or the reasons for making deviation from that rule. Standing counsel fairly stated after perusing the file that no such conscious decision has been taken by the Government so far. He sought time to file another affidavit stating the circumstances in which the petitioner was posted at the NMCH, Considering that already two affidavits have been filed the prayer was refused.
The Hon'ble Single Judge further mentions in his judgment:
The submission that after coming into force of the 1997 Rules the policy of merit-cum-choice posting no more survives is contrary to the stand taken by the Government in the case of Dr. Kameshwar Pandey CWJC No. 1201 of 1998. The learned Judge in that case noticed that the 1997 Rules was silent with respect to the posting and directed the Government to file affidavit as to whether earlier policy relating posting on "merit-cum-choice" stands superseded and whether the Government was contemplating to frame a new rule relating posting. The Government filed an affidavit stating that "it had decided to post a professor, on the basis of merit-cum-choice as posting of professor involves promotion an incumbent already posted in a medical college of the State would be given choice of medical college other than the existing station of posting. If number for successful incumbents is less than existing vacancies the Government will exercise its discretion to fill up one or the other post according to its administrative exigency on the basis of merit-cum-choice.
4A. Thus while issuing a writ of mandamus for the posting of the writ petitioner Dr. Mrs. Sheela Sharma the Hon'ble Single Judge relied on submission at the bar that in past postings have been made on the basis of merit-cum-choice and in the case of Dr. Kameshwar Prasad Pandey, CWJC No. 1201 of 1998, affidavit had been filed on behalf oT the State stating that the Government had decided to post a professor on the basis of merit-cum-choice. It is apparent that on this ground the hon'ble Single Judge laid down that there was a policy adopted by the State for posting a teacher in medical college on the basis of merit-cum-choice and that since the writ petitioner Dr. Mrs. Sheela Sharma was at the top of the merit list and she had given her choice for her posting in the PMCH the Government was bound to consider the posting of the writ petitioner in PMCH while passing his order the Hon' Single Judge did not mention any rule or law declaring the policy of the State for posting teachers in medical colleges on the principles of merit-cum-choice. No doubt, it was not disputed at the bar that postings were made in post on the basis of merit-cum-choice and that in the case of Dr. Kameshwar Pd. Pandey (CWJC No. 1201 of 1998) an affidavit had been filed on behalf of the State that postings were being made on the basis of merit-cum-choice but these things or these situations cannot be utilised to draw any authority of binding nature in the shape of any rule or law making it obligatory on the part of the State for posting a teacher in the medical college strictly according to the policy of merit-cum-choice posting. Any rule or law cannot be promulgated by some averments made by a Secretary of any department in any affidavit filed in a case on behalf of Government and any submission made at the Bar in any case.
5. It was argued by the appellants counsel that the writ petitioner Dr. Smt. Sheela Sharma was appointed on transferable post and the State of Bihar being the employer had every right under law to post its employee at any place considering public interest and administrative exigencey and this valuable right cannot be taken away without any rule or law in this regard. It was also argued that the writ petitioner having accepted employment on a transferable post under the State of Bihar was bound to join at the place where the employer posted her to work and that in absence of any law she had no legal right to claim her posting at a place of her choice.
6. The appellant supported its contention with the decision of the Hon'ble Supreme Court in the case of State of Bihar v. Kaushal Kishore Singh and Ors. reported in 1999 (1) PLJR (SC) 5 wherein the Apex Court held:
Even if options were called for and given, it is not mandatory for the Government to accept options of the candidates and make appointment to the post. Asking for option of candidates is essentially a discretionary matter and the Government is not bound to select the candidate on the basis thereof. Under these circumstances the candidate who applied for, though opted for, have not acquired right, muchless indefeasible or absolute right for selection or appointment to a particular posts.
7. Thus simply by submitting an option for being posted at a particular place the candidate submitting his option does not get an indefeasible right to claim posting at a place of choice as against other candidates on the ground that he is senior to others in the merit list. The respondent in this appeal was not able to show any rule or law under which the appellant State can be held to be bound for calling for options of the candidates and posting them according to their choice as per seniority in the merit list. It was argued by the appellants counsel that as a practice teachers in the medical college/hospital used to submits their options/choice for the place of their posting and in some cases the State tried to accommodate them as far as possible but in no way the filling of choice can be considered to confer on them a legal right to claim posting on the basis of choice.
8. The appellant State argued that the State being a model employer used to consider in past the option given by some teachers and by way of accommodation used to post teachers as far as practicable according to merit-cum-choice. but this act of accommodation done by the State cannot be taken to have created a legal right in the teachers to claim their posting on the basis of choice submitted by them.
9. The respondent writ petitioner argued that in past the State has followed the policy of merit-cum-choice posting and according to this policy the respondent writ petitioner was entitled to claim her posting in the PWCH according to her choice. To this the appellant State replied that there was no rule or law to create a legal right in the respondent writ petitioner for claiming her posting on the basis of merit-cum-choice posting. In support of claim of existence of merit-cum-choice posting the writ petitioner cited resolution dated 3.3.1975 of the Health Department. This resolution is at Annexure-15 of the LPA 616 of 2002. This mentions that if upon promotion to the post of tutor, resident Registrar etc. a medical officer, in order of seniority is posted in a medical college and he does not take charge or join in that medical college within the prescribed period he will be debarred for three years in his further promotion to the post of lecturer or professor. This resolution does not mention anywhere about posting of any medical teacher on the ground of merit-cum-choice. Further Notification No. 17, dated 12.9.1990 of the Health, Medical Education and Family Welfare Department of the Government of Bihar (Annexure-C/4 to LPA No. 616/2002) was also cited. This notification relates deputation of medical teachers of one college into another medical college. It is mentioned in this notification that in order to serve the interest of particular persons teachers of junior cadre of one medical college was deputed into another medical college against senior cadre post and proposals were being received for upgradation or degradation of posts in Colleges for serving the interest of particular persons and due to this difficulties were being faced. While dealing with this problem it was incidentally mentioned in the notification that due to deputation of teacher of one medical college into another medical college the policy of posting on merit-cum-choice was also being affected. Hence it was decided in the notification that henceforth teachers of one medical college will not be deputed in another medical college for serving the interest of particular teacher. It was argued that this notification states about the policy of postings on merit-cum-choice. But on perusal of this notification as whole it appears that the notification was solely for the purpose of dealing with the prohibition on deputation of teacher of one college into another medical college and that incidentally it was discussed in the notification that due to deputation the policy of posting on merit-cum-choice was also affected. Thus whatever is incidentally discussed in the notification about the policy of posting on merit-cum-choice it cannot be accepted as a document of declaration of adopting policy of merit-cum-choice, A casual reference of any policy while dealing with another matter will not do. If a policy is declared it must be declared in clear and unequivoeal terms. This notification cannot be looked into as a document of declaration by the State adopting policy of posting medical teachers on merit-cum-choice basis. Another resolution No. 7 dated 24.7.1990 (Annexure D/4 in LPA No. 616 of 2002) was relied on by the respondent writ petitioner. In this resolution decision has been taken with regard to putting prohibition on the transfer of posts of teachers from one medical college to another medical college. The decision of putting prohibition on transfer of post was taken on the ground that due to transfer of posts of teachers from one medical college to another medical colleges was being adversely affected. Hence it was necessary to put prohibition on transfer of posts and while taking such decision it was also incidentally mentioned in the resolution that due to transfer of post the policy of posting on merit-cum-choice was also being violated. Thus in this resolution the policy of merit-cum-choice was also being violated. Thus in this resolution the policy of merit-cum-choice takes a casual reference and such a casual reference cannot be accepted to be a declaration of such policy under this resolution. Thus considering the above referred resolution/notification it is found that these documents cannot be considered to be documents of declaration or adopting of any policy of merit-cum-choice posting with a force of binding nature so that the employer State can be compelled to post a medical teacher only on the basis of his merit-cum-choice. Thus the respondent writ petitioner has not been able to show any policy of posting on merit-cum-choice much less of binding legal force to entitle her to claim her posting on her choice as a matter of right.
10. Referring the decisions in the case of (i) Dr. Smt. Manju Banker v. State of Bihar, reported in 1991 (1) PLJR 663. (ii) Dr. Smt. Krishna Choudhary v. The State of Bihar and Ors. reported in 1996 (2) All PLR 1095, (iii) Dr. Kameshwar Pd. Pandey v. State of Bihar and Ors. CWJC No. 1291 of 1999 decided on 22.9.2000 and (iv) Dr. Mrs. Ranjana Sinha v. State of Bihar, reported in 1996 (2) PLJR 683, it was argued on behalf of the respondent writ petitioner that in these decisions this Court has issued writ of mandamus for posting the writ petitioners according to their choice on the ground of merit-cum-choice. The perusal of these decisions show that in these cases the Court had directed for posting the petitioners in those cases according to choice/options under particular facts of the case. In none of these cases the Court was faced with a disputed question of posting on the ground of merit-cum-choice posting with a view to decide whether the petitioners in those cases were entitled under law to claim such posting on the principle of any merit-cum-choice posting. The decision in these cases are judgment in personam and not in rem. Thus these decisions cannot be considered to be decision laying down a principle of law declaring that there exist a policy of posting merit-cum-choice with binding legal force in order to entitle a teacher in medical college to claim his posting on the basis of his choice and that the employer State is bound to post a teacher in a medical college to another medical college strictly according to his choice. Rather in the case of Dr. Rafat Ali Shakoor v. The State of Bihar and Ors. (LPA 120/94 decided on 19.8.1996), a Division bench of this Court held:
It is his submission that the posting must be done according to the choice of the concerned eligible candidate, the seniormost having the first choice, the appellant, therefore, wanted that he should be posted at Patna but contrary to his choice, he was posted at Ranchi. Consequently, he refused to join and the order dated 4.1.1988 followed debarring him from promotion for three years under the relevant Government decision.
No rule, circular or policy decision has been shown to us that there is any such rule or policy that the seniormost teacher will have a choice in the matter of his posting. It may be that in many cases, the persons have been given the benefit of their choice but that cannot be equated with a rule, because many may not have been given a posting of their choice. Moreover the posting of a teacher becomes necessary on account of vacancy that may arise in different medical colleges. The post is a transferable post and, therefore, if a person refuses to join a post to which he is promoted in another college he incurs the liability of debarment for three years. There is nothing arbitrary about the said rule.
11. This Court further held "...we fail to understand how the appellants claim posting at a particular station as a matter of right. The order Annexure-2 is perfectly consistent with the Executive Order that if a teacher refuses to join his post in any other college he should be debarred from promotion for three years. There is, therefore, no question of order either being arbitrary or frustrating the legitimate expectation of the appellant. The principle of natural justice cannot be invoked in such cases."
12. Thus this Court found that there was no rule, circular or policy decision entitling the appellant in that case to claim his posting in a place of his choice as a matter of right. The present case is quite similar to that.
13. The learned counsel for the respondent Dr. (Mrs.) Sheela Sharma argued that the Special Establishment Committee in its meeting held on 29.8.2001 had recommended that Dr. Smt. Sheela Sharma being senior in the merit list be posted in PMCH according to her option/choice as against the appellant Dr. Mrs. Shushma Pandey who was junior in the merit list, but the learned counsel for the appellant argued that the recommendation of the Special Establishment Committee bases on the premise of existence of policy of merit-cum-choice posting whereas under law there does not exist any such policy. It was also argued that the Government was the final authority to pass order of transfer and posting and that the recommendation of the Special Establishment Committee was not binding on the Government and that the Government was not bound under law to assign any reason for not accepting the recommendation of the Special Establishment Committee. The appellant cited the case of Kailash Bihari Pd. v. State of Bihar, reported in 1992 (1) PLJR 209. The Division Bench of this Court held in this case:
It is well established principle that transfer is an incident of service. There is no inherent right in any Government servant to stick to one place of posting of his own choice in the service. In accordance with the condition of service, whenever they are holding a transferable post, the transfer can be made from time to time if it is so considered that it is in the public interest and for the best administration. The recommendation of the establishment committee is not binding. The Minister incharge was well within his competence to make such alteration and/or modification which were necessary in the public interest and in the best interest of the administration. The commendation of the establishment committee is directory.
14. Thus the recommendation of the establishment committee is only directory and the State Government which is final authority is not bound to accept the recommendation while passing final order with regard to the transfer and posting of Government servant.
15. The learned counsel for the appellant argued that the respondent writ petitioner having accepted employment on a transferable post and transfer being incident of the service she can be posted at any place of work. It was further argued that the respondent writ petitioner has not been able to show any case of malafide in the transfer. The further submission was that in absence of any rule or law the respondent writ petitioner had not legal right to claim her posting at a place of her choice. It was also submitted that the appellant State, being the employer, employed the writ petitioner on a transferable post and it has every right to post her in any medical college in the public interest and administrative exigency. Referring the provision under Article 14 of the Constitution of India that State shall not deny to any person equality before the law or equal protection of the laws, it was argued that if without any authority of law the respondent writ petitioner is directed to be posted at a place of her choice it would be just like depriving the appellant State, of its legal right to transfer a Government servant from one place to another. The submission of the appellants counsel in this regard has substantial reason and is fit to be accepted and therefore, it is found that allowing the prayer of the respondent writ petitioner would be violative of the Article 14 of the Constitution in as much as it would deprive the appellant State of its right to transfer an employee on a transferable post from one place to another in public interest and administrative exigency.
16. So far the question of limitation, application of the principles of res judicata and casus omissus is concerned I agree with the Judgment of My Lord Justice Chandramauli Kumar Prasad in this regard but in view of my disagreement on other points as discussed in the preceding paragraphs about the applicability of any principles of posting on merit-cum-choice, I feel that the respondent writ petitioner Dr. Smt. Sheela Sharma is not entitled to writ of mandamus for directing the appellant State to post her at a place of her choice. Therefore, in my opinion, the judgment of the Hon'ble Single Judge allowing the prayer of the writ petitioner is fit to be set aside and the appeals have to be allowed.
ORDER In view of majority the appeals stand dismissed without any order as to cost.