The principle of merit-cum-choice applies not only at the time of initial appointment but also to subsequent transfers and postings. Ministerial interference with Establishment Committee recommendations must be supported by valid reasons to avoid arbitrariness.

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. 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