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2001 DIGILAW 651 (JHR)

Amreshwar Prasad v. State Of Jharkhand

2001-09-11

body2001
ORDER S.J. Mukhopadhaya, J. 1. The writ application has been preferred by petitioner against a reasoned order passed by the Director, Indigeneous Medicine, Government of Bihar, Patna, contained in Memo No. 350 (I.M.) dated 1st June, 2001, whereby and whereunder the petitioners promotion earlier made against a post of Homeopathic Medical Officer has been held to be illegal; he has been reverted to the post of Basic Health Worker and the 4th respondent. Dr. Amar Nath Purbey has been promoted against the said post. 2. In the present case, the petitioner has raised question of jurisdiction of the State of Bihar and its authority to pass orders relating to condition of service in respect to persons posted within the State of Jharkhand. According to petitioner, the Director, Indigeneous Medicine, Government of Bihar, Patna has no jurisdiction to pass any order in respect to petitioner who is posted within the State of Jharkhand since reorganisation of the State i.e. 15th November, 2000. 3. As the case can be disposed of on short point and the issue, as raised, stands decided by this Courts judgment in the case of Arvind Vijay Billing v. State of Bihar, reported in 2001 (3) JCR 155 (Jhr), it is not necessary to discuss all the facts, claim and counter claim, as made by the parties. 4. Admittedly, the petitioner, the respondent No. 4 and others, like Dr. Muni Bagish Tiwary were in the services of the then State of Bihar as Basic Health Worker. The petitioner was earlier promoted to the post of Homeopathy Medical Officer on the recommendation of a selection committee in the year 1980. 5. One Dr. Muni Bagish Tiwary, another Basic Health Worker, challenged the order before the Patna High Court in CWJC No. 8253/1988, wherein the court by its judgment and order dated 8th January, 1990 remitted the case to the Director, Indigeneous Medicine, Government of Bihar, Patna for reconsideration. It was observed that if the petitioner. Dr. Muni Bagish Tiwary was found senior to respondent No. 4 of the said case, then there should not be any reason not to appoint/promote him in preference to the respondent No. 4 of the said case. It was also made clear that if there was sanctioned post/ vacancy the respondents can retain the 4th respondent of the said case as Homeopathy Medical Officer. 6. It was also made clear that if there was sanctioned post/ vacancy the respondents can retain the 4th respondent of the said case as Homeopathy Medical Officer. 6. Admittedly no final decision was taken and the matter remained pending for more than ten years. In the meantime the petitioner was posted in the South Bihar but the 4th respondent continued as Basic Health Worker in the North Bihar. In pursuance of Bihar Reorganisation Act, 2000, since 15.11.2000 two successor State of Bihar and Jharkhand were created. The petitioner even after reorganisation continued to function as Homeopathic doctor against a post and office which fall within the jurisdiction of the State of Jharkhand. On the other hand the 4th respondent who was working as Basic Health Worker against a post and the office fall within the successor State of Bihar, 7. The respondent No. 3 appeared and denied the allegation of malafide. 8. The respondent No. 4 also appeared and has taken plea that the impugned order No. 350, dated 1.6.2001 was challenged by one Dr. Muni Bagish Tiwary before Patna High Court in CWJC No. 9561 of 2000 but the Patna High Court dismissed the writ petition vide its judgment and order dated 27th July, 2001 as affirmed by appellate court. 9. It will be evident from the aforesaid judgment of Patna High Court, as accepted by the counsel for the parties, that the issue relating to jurisdiction of Director, Indigeneous Medicine, Government of Bihar in respect to officers posted within the State of Jharkhand has not been determined by the Patna High in CWJC No. 9561 of 2001 (Annexure-A to the counter affidavit filed by respondent No. 4). 10. The question relating to jurisdiction and appointing authority on reorganisation of State fell for consideration before this Court in Arvind Vijay Billing (Supra), wherein this court held as follows :-- "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. 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. 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." 11. In the aforesaid circumstances, the Director, Indigeneous Medicine, Government of Bihar, Patna has no jurisdiction to pass any order in respect to persons posted within the State of Jharkhand. The services of the petitioner also can not be sent back to the State of Bihar till a notification of Central Government under Section 72 (1) or (2) of the Bihar Reorganisation Act, 2000 is issued; nor the State of Bihar can promote the 4th respondent against a higher post within the State of Jharkhand. 12. For the reasons aforesaid, the impugned Memo Nos. 350 and 351, both dated 1st June, 2001 are set aside. 13. However, it will be open to the Director, Indigeneous Medicine, Government of Bihar, Patna or the State of Bihar to refer the matter to the State of Jharkhand and/or Director, Indigeneous Medicine, Government of Jharkhand, Ranchi to pass appropriate order, in accordance with law, if permissible. 14. The writ petition is allowed. No costs.