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2001 DIGILAW 647 (JHR)

Arun v. State Of Bihar

2001-09-11

SUDHANSU JYOTI MUKHOPADHAYA

body2001
JUDGMENT S.J. Mukhopadhaya, J. 1. The petitioner, a member of the State Engineering Service, has preferred this writ petition against a decision of State of Bihar, circulated, vide Resolution contained in memo No. Ka-2178 dated 21st April, 2001 issued from its Personnel and Administrative Reforms Department, whereby and whereunder, the Government of Bihar in purported exercise of powers under Regulation 4(iii) of the I.A.S. Appointment by Selection Regulation. 1997 framed under Sub-rule (2) of Rule 8 of I.A.S. (Recruitment) Rules. 1954 made a declaration by which the posts belonging to Non State Civil Services and Cadre of the State other than the Bihar Forest Service, Bihar Police Service and Bihar Administrative Service in the pay scale of Rs. 10.000 and Rs. 15,200/- and higher scale of pay will be eligible to be considered for appointment as I.A.S. 2. As the case can be disposed of on short point, it is not necessary to discuss all the facts and the question, as raised by the petitioner in the present case. 3. Admittedly, the petitioner was a member of the Bihar Engineering Service Class I prior to the reorganisation of the State. He is posted as Executive Engineer in the Advance Planning Division of Road Construction Department. Ranchi since October, 2000. 4. It is not in dispute that after reorganisation of the State in pursuance of Bihar Reorganisation Act. 2000 the District of Ranchi fall within the territory of the newly created State of Jharkhand and has been made as its capital. It is also not in dispute that the petitioner and other members of the Engineering Service Class-I, they have not been finally allocated any one or other State of Bihar or Jharkhand. 5. The question as to which State or its authority will be the appropriate authority of the state to take steps relating to appointment and disciplinary action, fell for consideration before a Bench of this Court in the case of Arvind Vijay Bilung and analogous case v. State of Bihar and Ors., reported in 2001 (3) Jhr CR 155 (Jhr). 6. In the said case, this Court taking into consideration the definition of "existing State of Bihar" as was existing prior to 15th November, 2000 and the definition of "Successor State", making the State of Bihar and Jharkhand and the provision of Sections 72 and 74 of the Bihar Reorganisation Act, 2000, held as follows :-- "22. 6. In the said case, this Court taking into consideration the definition of "existing State of Bihar" as was existing prior to 15th November, 2000 and the definition of "Successor State", making the State of Bihar and Jharkhand and the provision of Sections 72 and 74 of the Bihar Reorganisation Act, 2000, held as follows :-- "22. Section 74 of the Reorganisation Act. 2000, is a deeming provision whereunder a person, who was holding or discharging duties of any post or office in connection with the existing State of Bihar prior to November 15, 2000. On and from November 15, 2000, such person shall continue to hold the same post or office, in that successor state under which the area falls, and shall be deemed, on and from November 15, 2000, to have been duly appointed to the post or office by the Government or appropriate authority in that successor State, under whom the posts and office falls. 23. From the aforesaid provision, it will be clear that a person, who is holding post or office in the State of Jharkhand as on November 15, 2000, deemed to be appointed by the Government of Jharkhand on the appropriate authority of the State of Jharkhand. Continuance of such person can be affected only by the State of Jharkhand or its appropriate authority. Similarly, a person, whose post or office falls within the present State of Bihar, on and from November 15, 2000, continues to hold the same post or office in the present-State of Bihar and shall deemed to have been duly appointed to the post or office by the present State of Bihar or its appropriate authority. 27. Admittedly, every person, who immediately before November 15, 2000, was serving the existing - State of Bihar, their appointing authority was the existing State of Bihar, or the appropriate authority of said existing-State of Bihar. On and from November 15, 2000, for all purpose, the existing-State of Bihar is not in existence having bifurcated and two successor-States both came in existence since November 15, 2000, one cannot compare the existing-State of Bihar, as was existing prior to November 15, 2000, nor can make it synonyms to successor-State of Bihar. which came into existence on November 15. 2000. which came into existence on November 15. 2000. As there should be an appointing authority for every person, the existing- State of Bihar for all purpose having become non-existence, as it become necessary to make one or other successor-State or appropriate authority of that successor-State to be the appointing authority, the provision of Section 74 of Reorganisation Act, 2000, seems to have been incorporated by the Parliamentarians. 28. It is a settled law that every clause of a statute is to be considered with reference to the context and other provisions of the Act to make it consistent and harmonious meaning of the statute relating to subject-matter. The expression provisionally continue to serve in connection with the affairs of the State of Bihar referred to Sub-section (1) to Section 72 cannot be construed in isolation, but to be read in conjunction with Section 74, one being complementary to other, substituting the successor-State as the appointing authority in place of the parent-State. Such is the view of Mysore High Court in N. Chandramouli v. State of Mysore, AIR 1971 Mysore 53. Expression competent authority occurring in proviso to Section 74 cannot be construed in isolation. It is to be read in conjunction with, construed and understood as having the same meaning as the expression "appointing authority contemplated by Sub-section (1) of Section 74. Such is the view of the apex Court in the case of Mysore State Road Transport Corporation v. Mirja Khasim All Beg, (supra). 29. In absence of general or special order of the Central Government, a person posted in the area of State of Jharkhand though provisionally continue to serve in connection with the affairs of the State of Bihar under Sub-section (1) of Section 72, it is to be read along with provision of Section 74, both being complementary to each other. A person holding post which is not abolished by or because of the State Reorganisation Act, would continue to hold the post and office and will be deemed to have been appointed to the post by the appropriate/competent authority of the successor-State. 30. A person holding post which is not abolished by or because of the State Reorganisation Act, would continue to hold the post and office and will be deemed to have been appointed to the post by the appropriate/competent authority of the successor-State. 30. In the aforesaid background, in respect to persons holding post or office In the area of State of Jharkhand, the appointing authority being the State of Jharkhand, till they are not allocated in the State of Bihar, the competent authority to take disciplinary action shall be the State of Jharkhand and not the State of Bihar." 7. In view of the decision aforesaid the petitioner being posted within the State of Jharkhand, the Resolution contained in Memo No. Ka-2178 dated 21st April, 2001 issued by the Personnel and Administrative Reforms Department of the State of Bihar, cannot be made applicable in respect to the members of the State Services posted within the State of Jharkhand. The State of Jharkhand, in no manner, can act on the resolution issued by the State of Bihar on 21st of April, 2001 till such resolution is adopted by the State of Jharkhand. 8. For the reasons aforesaid, as Resolution dated 21st April, 2001 will not affect the petitioner or any member of the State services who are posted within the State of Jharkhand since and after 15th November. 2000, such Resolution is not required to be interfered in the present writ petition. The appropriate authority of the State of Jharkhand may ignore the same. 9. So far as recommendation of name of petitioner and others for appointment by selection in the Indian Administrative Service is concerned, this Court having no jurisdiction under Article 226 of the Constitution of India to decide the issue, the matter is left open to the parties. Aggrieved person may move before the Central Administrative Tribunal/or the competent authority. 10. The writ petition stands disposed of with the aforesaid observations. 11. Writ petition disposed of.