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Jharkhand High Court · body

2001 DIGILAW 765 (JHR)

Chandra Kishore Singh v. State Of Jharkhand

2001-11-23

M.Y.EQBAL

body2001
ORDER M.Y. Eqbal, J. 1. Petitioner is aggrieved by the notification contained in Memo No. 200 (S), dated 18.1.2001 issued by Deputy Secretary. Public Works Department (Road) by which petitioner has been posted as In-charge Engineer-in-Chief (Road). Public Works Department instead of posting him on the post of Engineer-in-Chief-cum- Additional Commissioner-cum-Special Secretary on which post petitioner had been working in the State of Bihar. 2. Petitioners case is that before the impugned notification was issued and before transferring his services from the State of Bihar to the State of Jharkhand, he was posted as Engineer-in-Chief-cum-Additional Commissioner-cum-Special Secretary in the Public Works (Road) Department. It is stated that the Government of Bihar took a decision and declare the post of Engineer-in-Chief-cum-Additional Commissioner-cum-Special Secretary of the Public Works Department as equivalent to the post of Commissioner and redesignated the post as Engineer-in-Chief-cum-Additional Commissioner- cum- Special Secretary in the Public Works Department vide Government resolution dated 14.4.1981. In the month of November 2000 pursuant to the division of the existing State of Bihar the services of the petitioner along with the post of Engineer-in-Chief-cum-Additional Commissioner-cum-Special Secretary was transferred to the State of Jharkhand vide notification dated 18.11.2000. Petitioner submitted his Joining in the State of Jharkhand vide notification dated 18.11.2000 issued by the existing State of Bihar. Petitioner submitted his joining In the State of Jharkhand and started discharging duties "and functions as Engineer-in-Chief- cum-Additional Commissioner -cum-Special Secretary. The Government of Jharkhand by impugned notification dated 18.11.2000 posted the petitioner as in-charge Engineer-in-Chief (Roads) in the Public Works Department under the Government of Jharkhand till further order. 3. From perusal of the notification dated 18.11.2000 (Annexure-4), it appears that the services of the petitioner was transferred from the Government of Bihar to the Government of Jharkhand along with the post of In-charge Engineer-in- Chief- cum-Additional Commissioner-cum-Special Secretary in the Road Construction Department. It further appears that the Government of Jharkhand by notification dated 18.1.2001 posted the petitioner on the non-existent and imaginary post of In-charge Engineer-in-Chief and not on the post/rank of Engineer-in- Chief-cum-Additional Commissioner-cum-Special Secretary. 4. The stand of the respondents in the counter-affidavit is that the Government was not in a position to award the petitioner with the regular promotional highest technical post of Engineer- in-Chief because of the fact that petitioners regular promotion to the post of Engineer-in-chief was not approved by the Bihar Cabinet. 4. The stand of the respondents in the counter-affidavit is that the Government was not in a position to award the petitioner with the regular promotional highest technical post of Engineer- in-Chief because of the fact that petitioners regular promotion to the post of Engineer-in-chief was not approved by the Bihar Cabinet. It is further stated that the Stale of Jharkhand will consider the petitioners claim to the post of Engineer-in-chief- cum- Additional Commissioner-cum-Special Secretary, provided it is approved by the Bihar Government. As soon as the petitioner gets his promotion on regular basis, the Government would consider his claim. 5. Before appreciating the case of the petitioner, it would be useful to refer certain provisions of the Bihar Reorganisation Act, 2000. Section 72 of the said Act inter alia provides that: Every person who immediately before the appointed day serving in connection with the affairs of the State of Bihar shall provisionally continue to serve in connection with the affairs of the State of Bihar unless he is required, by general or special order of the Central Government to serve provisionally in connection with the affairs of the State of Jharkhand. Section 73 of the Act provides that condition of service applicable immediately before the appointed day in the case of any person deemed to have been allocated to the State of Bihar or to the State of Jharkhand under Section 72 shall not be varied to his disadvantage except with the previous approval of the Central Government. Section 74 of the Act provides that every person who is holding or discharging the duties of any post or office in connection with the affairs of the existing State of Bihar before the appointed day shall continue to hold the same post or office in that successor State and shall be deemed to have been duly appointed to the post or office by the Government or any other appropriate authority in the successor State. 6. Admittedly, petitioner was posted as In-charge Engineer-in- Chief-cum- Additional Commissioner-cum-Special Secretary in the existing State of Bihar and his services was transferred from the State of Bihar to the State of Jharkhand along with the post of Engineer-in-Chief-cum-Additional Commissioner-cum-Special Secretary and petitioner submitted his joining in the State of Jharkhand. The impugned notification dated 18.1.2001 posting the petitioner to the post of In-charge Engineer-in-Chief (Road). Public Works Department is not justified. The impugned notification dated 18.1.2001 posting the petitioner to the post of In-charge Engineer-in-Chief (Road). Public Works Department is not justified. In my opinion, depriving the petitioner of the post of Additional Commissioner- cum- Special Secretary by the State of Jharkhand will amount to change in his service condition which is essentially to his disadvantage and in violation of the provisions of Section 73 of the said Act. It is well settled that the condition of service applicable to an officer immediately before the appointed day cannot be varied to his disadvantage in the case of allocation of his service to another State except with the previous approval of the Central Government. In this connection, reference may be made to the decision of the Supreme Court in the case of Md. Shukla and Ors. v. State of Gujarat and Ors., AIR (971 SC 117- 7. This writ application is therefore, al lowed and the impugned order dated 18.1.2001 is quashed. It is declared that the petitioner will continue holding the post of Enginecr-in- Chief-cum-Additional Commissioner-cum- Special Secretary- in the Staff of Jharkhand till allocation of cadre is finalised by the Central Government. 8. Appeal allowed.