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PATNA HIGH COURT
Chandramauli Kumar Prasad, Shiva Kirti Singh and Chandra Mohan Prasad JJ.
Dr.(Mrs.) Shushma Pandey
Versus
State Of Bihar
Letters Patent Appeal No. 616 of ; 2002 of ;
Letters Patent Appeal No. 171 of 2003 ;
Decided On : FEBRUARY 21, 2006
1991(1) PLJR 663, 1996(2) All PLR 1095, 1996 (2) PLJR LPA 120/94-Distinguished.
Judicial Review-In another case this court had not adjudicated that policy of merit cum choice does not exist but declined to grant relief on the ground that no Rule, circular or policy that the senior most teachers will have a choice in the matter of posting was brought to their notice-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. (Para 26)
LPA 120/94-Distinguished.
Rules of Executive Businese-Policy of merit-cum-choice existed from before which got concretised by issuance of resolutions-Resolutions have been expressed in the name of Governor and authenticated in accordance with the Rules of Executive Business-It seems to attract teachers in Medical Colleges-The State had adopted the policy of merit cum choice to avoid exodus and arbitrariness-The principle sounds laudable. (Para 28)
Principle of "causus omissus"-For applying the maxim "casus omissus" one has to see that legislatire had wilfully omitted to incorporate something of an analogous statute in a subsequent statute-No analogous statute has been brought to notice dealing with the issue of posting on merit-cum-choice basis-Principle of "casus omissus" not attracted. (Para 37)
(1975)4 SCC 22, AIR 1992 SC 96, AIR 2004 SC 86, (2004) 11 SCC 625-Distinguished.
Constitution of India-Article 226-Mandamus-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 obligation-In a case in which the policy of 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 on merit becomes a legal right in view of the policy state has legal obligation to carry-out the same unless there be good reasons for acting at variance. (Paras 40 & 41)
1991 (1) PLJR 5(SC)-Distinguished.
Constitution of India-Article 14-Merit cum choice posting-State following the policy in case of others-In absence of any valid reasons denying the same to the petitioner can be said to be arbitrary. (Para 42)
Code of Civil Procedure 1908-Section 11 read with section 141 Explanation-Res-judicata-Applicability-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-In absence of any adjudication in the earlier writ application-Principle of resjudicata is not attracted. (Paras 51 & 52)
Administrative Law-State can not do whatever it likes and its decision has to be guided by reasons-Ordinarily the re commendation of Establishment Committee shall be binding on the State Govt.-However for good and valid reasons the recommendation of Establishment Committee may not be accepted when challenge is made the reason must appear on the face of the record. (Para 57)
Practice and Procedure-It is, for a litigant to engage a counsel of its choice and the state also falls within the category of a litigant before 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. (Para 58)
Dissenting View-Per C.M. Prasad J.
Appointment-Merit cum choice policy in Posting-Affidavit filed on behalf of State stating that the Govt. had decided to post a professor on the basis of merit cum choice, but it can not be utilised to draw an authority of binding nature-A policy must be declared in clear and unequivocal terms-Any rule or law can not be promulgated by some averments made by a secretary of any department in any affidavit filed in a case on behalf of Govt.-Judgments referred and relied upon are in personam and not in rem cannot be considered to be laying down a principle of law-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-Govt. being final a authority on transfer and posting cannot be deprived of its right-Recommendation of Establishment committee not binding on State-Appeal Allowed. (Paras 4 to 7, 9, 12 to 14)
1992 (1) PLJR 209, 1991(1) PLJR 5 (SC) LPA 120 194, CWJC 1201/98-Relied upon.
1991 (1) PLJR 663, 1996(2) All PLR 1095, CWJC 1201/99, 1996(2) PLJR 683-Distinguished.
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/s. 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/s. 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
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