Research › Search › Judgment

Patna High Court · body

2002 DIGILAW 844 (PAT)

Kunj Bihari Prasad Sinha v. State Of Bihar

2002-08-05

S.N.JHA

body2002
Judgment S.N.Jha, J. 1. The dispute in this batch of three writ petitions on behalf of 109 employees of the Bihar School Examination Board (in short the Bihar Board) relates to their allocation to the Jharkhand Secondary Examination Board (in short, the Jharkhand Board) upon the division of the State of Bihar under the Bihar Reorganisation Act, 2000 and establishment of separate Examination Board in the State of Jharkhand. 2. The dispute relating to division of cadre had come upto this Court earlier also at the instance of the petitioners in CWJC Nos. 4533, 4641 and 4884 of 2001. The petitioners were aggrieved by the decision of the Administrators of the two Boards taken in the meeting held on 26.3.2001 communicated vide memo no. 3026 etc. dated 31.3.2001 by which they were permanently allocated as employees of the Jharkhand Board. The writ petitions were allowed on the ground that the Reorganisation Act does not vest power to allocate the employees to the Jharkhand Board. The Court observed that in case the Board feels any difficulty it may move the State Government or any other appropriate authority to invoke section 92 of the Reorganisation Act which confers power to remove difficulties on the President of India. The Division Bench upheld the said order in LPA No. 428/2001. The Division Bench too observed that as there is no provision in the Act in the matter of allocation of the employees of the Bihar School Examination Board and the power to remove any difficulty is vested in the President under section 92 of the Act, "the Board is advised to move the Central Government for appropriate direction with regard to allocation of its employees". The Board/State Government, it appears, moved the Central Government in the light of the aforesaid observations of this Court. The Board/State Government, it appears, moved the Central Government in the light of the aforesaid observations of this Court. On 27.3.2002 a statutory order titled the Bihar Reorganisation (Removal of Difficulties) Order, 2002 (in short, the Removal of Difficulties Order) was issued by the President of India, the relevant part of which may be quoted at the outset as under : "Whereas, a difficulty has arisen with respect to the allocation of the employees of the statutory corporations covered by section 66 of the Bihar Reorganisation Act, 2002 (30 of 2000); Now, therefore, in exercise of the powers conferred by sub-section (1) of section 92 of the Bihar Reorganisation Act, 2000, the President hereby makes the following Order, namely : (1) This Order may be called the Bihar Reorganisation (Removal of Difficulties) Order, 2002. (2) It shall came into force at once. The allocation of assets, liabilities and employees of the statutory corporations or bodies covered under section 66 of the Bihar Reorganisation Act, 2000 shall be done by mutual agreement between the successor States of Bihar and Jharkhand and in the event of any disagreement by the Central Government, on a reference being made by either of the States." 3. The above notification was circulated by the Home (Special) Department, Government of Bihar, vide its memo no. 727 dated 12.4.2002. On 22.4.2002 the Secretary to the Bihar Board issued office orders contained in memo nos. 4419, 4420, 4421 and 4422 handing over services of the employees mentioned therein to the Jharkhand Board on permanent basis, and relieving them with effect from 24.4.2002. The said memos contain the names of 11 Section Officers, 13 Correspondence Clerks, 38 Class IV staff and 53 Assistants respectively. On 21.6.2002, a meeting was held under the Chairmanship of the Minister Incharge Secondary Education, Bihar in which two Secretaries Incharge Secondary Education of the Government of Bihar and the Government of Jharkhand participated. In the said meeting, inter alia, the earlier decision of the Administrators of Bihar and the Jharkhand Boards and orders contained in memo nos. 4419, 4420, 4421 and 4422 dated 22.4.2002 (handing over services of 111 (sic, 115) employees at the disposal of the Jharkhand Board) was endorsed. The word used in the order (in Hindi) is satyankit which, it was said, means rectified. 4419, 4420, 4421 and 4422 dated 22.4.2002 (handing over services of 111 (sic, 115) employees at the disposal of the Jharkhand Board) was endorsed. The word used in the order (in Hindi) is satyankit which, it was said, means rectified. In other words, it is sought to be conveyed on behalf of the respondents that the defect in the earlier decision dated 26.3.2001/31.3.2001 stands rectified inasmuch as decision has now been taken with the consent of both the Governments of Bihar and Jharkhand in accordance with the Removal of Difficulties Order. The said decision of the Committee was communicated by the Secretary Incharge Secondary Education, Government of Bihar vide memo no. 372 dated 1.7.2002. 4. The case of the petitioners is that the same list, earlier notified on 26.3.2001/ 31.3.2001, has been reiterated as an empty formality without application of mind. Indeed, the allocation has been made without laying down any principle or guideline on pick and choose basis. The same list having been reiterated the allocation continues to be defective. The case of the petitioners further is that there being no provision in the Reorganisation Act regarding allocation of employees of the Bihar School Examination Board the only way was/is to amend the Act; recourse to section 92 is no solution. Section 92 envisages removal of difficulty where difficulty arises in implementing the provisions of the Act. There being no provision in the Act regarding allocation of employees of the Bihar School Examination Board, by an executive order the lacuna cannot be removed taking recourse to section 92. It is submitted that in earlier writ petitions this Court had held that "now there is no scope of issuing any directions by the Central Government under section 66 of the Act. Such power of the Central Government is expressly confined to the period until other provision is made by law." The Division Bench did not find any infirmity in the order and it is not open to this Court at this stage to uphold the impugned allocation made in terms of the Removal of Difficulties Order issued under section 92 of the Act. 5. I shall take up first the latter limb of the argument regarding jurisdiction of the Governments of Bihar and Jharkhand in the matter of allocation of employees of the Bihar School Examination Board in the context of the Removal of Difficulties Order 2002. 5. I shall take up first the latter limb of the argument regarding jurisdiction of the Governments of Bihar and Jharkhand in the matter of allocation of employees of the Bihar School Examination Board in the context of the Removal of Difficulties Order 2002. Before going into that question, I consider it proper to briefly refer to the scheme of the Act. The Reorganisation Act has been enacted to provide for reorganisation of the existing State of Bihar and for matters connected therewith. Section 3 of the Act provides for formation of Jharkhand State on or from the appointed day i.e. 15.11.2000. Parts III and IV of the Act deal with the Legislature and the High Court respectively. Parts V and VI relate to authorisation/ distribution of Expenditure and Revenues and apportionment of assets and liabilities, respectively. Part VII deals with Bihar State Electricity Board, Bihar State Warehousing Corporation, the Bihar State Road Transport Corporation, the Bihar State Financial Corporation and certain companies specified in the 9th Schedule to Act and statutory corporations. Section 66 which finds mention in the Removal of Difficulties Order and has bearing on the dispute occurs in this part and I shall particularly refer to it later in this judgment. Part VIII relates to All India Services and the State Services. Part IX relates to management and development of Water Resources. Part X contains legal and miscellaneous provisions. Section 92 occurs in this part. 6. From the judgment in the previous writ petitions (CWJC Nos. 4533/2001 and analogous) it appears that an attempt was made on behalf of the respondents to justify the impugned allocation of the services giving analogy to the provisions of section 59 of the Act in the matter of division of assets with the consent of the two Governments. It was submitted that if the assets and liabilities are to be apportioned by mutual agreement, the employees of the Board could also be apportioned by mutual agreement. The Court rejected the submission observing that the assets and liabilities have been treated on different footing in the Act than the employees of the statutory corporations or the government. While part VI of the Act deals with apportionment of assets and liabilities, part VIII deals with the Services. It is part VII which contains provisions as to corporations. The Court rejected the submission observing that the assets and liabilities have been treated on different footing in the Act than the employees of the statutory corporations or the government. While part VI of the Act deals with apportionment of assets and liabilities, part VIII deals with the Services. It is part VII which contains provisions as to corporations. The Board being a statutory corporation within the meaning of section 66 will be governed by the provisions contained in part VII. But while there are specific provisions with respect to the transfer of employees of the Bihar State Electricity Board, Bihar Warehousing Corporation and Bihar State Road Transport Corporation, there is no provision in the Act regarding allocation of employees of the Board. Thus, the impugned allocation amounted to transfer to "foreign service" which could not be done without consent of the employees. 7. The Court, however, observed that the Board may move the State Government or other appropriate authority for invoking the power under section 92 of the Reorganisation Act. The Division Bench reiterated the above observation and advised the Board to move the Central Government for appropriate direction in the matter of allocation of its employees. The Removal of Difficulties Order was accordingly issued by the Ministry of Home Affairs in the name of the President of India. 8. From bare reading of the said Order, quoted above, it is clear that it relates to allocation of not only employees but also the assets and liabilities by mutual agreement. Reference to section 66 therein appears to have given rise to an impression that the allocation is to be made under section 66. It is for this reason that argument was made on behalf of the petitioners that after Jharkhand Board was constituted under an enactment of the Jharkhand Legislature, section 66 has exhausted itself. The impression is wholly misconceived. 9. It is true that upon constitution of the Jharkhand Board under an enactment of the State legislature section 66 exhausted itself but in a different sense. Section 66 provides for continuance of statutory corporations constituted under a Central Act or State or Provincial Act (other than those for which specific provision has been made, such as, Bihar State Electricity Board, the State Warehousing Corporation, State Road Transport Corporation or Bihar State Financial Corporation) as inter-State body corporate until provision is made otherwise, by law, with respect to them. It would be useful to quote section 66 so far as relevant for the purpose of this case as under: "66. General provision as to statutory Corporations. (1) Save as otherwise expressly provided by the foregoing provisions of this Part, where anybody corporate constituted under a Central Act, State Act or Provisional Act for the existing State of Bihar or any part thereof has, by virtue of the provisions of part II of this Act, become an inter State body corporate, then, the body corporate shall, on and from the appointed day, continue to function and operate in those areas in respect of which it was functioning and operating immediately before that day, subject to such directions as may from time to time be issued by the Central Government, until other provision is made by law in respect of the said body corporation." 10. In terms of the above provisions, the Bihar School Examiniation Board constituted under an Act of the State Legislature continued to function and operate in areas in which it was functioning and operating immediately prior to the appointed day as inter-State body corporate. Such continuance was subject to such directions as could be issued from time to time by the Central Government. However, as soon as the Jharkhand Board came into existence, its continuance as an inter-State body in the areas comprising the State of Jharkhand automatically came to an end. Thereafter the Central Government could not issue any direction in the matter. Thus, the direction which the Central Government was competent to issue under section 66 was entirely different kind of direction in the matter of continuance of the Board or other body corporate as an inter-State body Corporate. It is, therefore, not correct to say that after the Jharkhand Board came to be constituted under an enactment of the Jharkhand legislature no direction could be issued by the Central Government in terms of section 92 of the Act. Section 66 and section 92 operate in two distinct fields. The observation of the learned Judge in the previous writ petitions was in the context of section 66 and it cannot be said on that basis that the Central Government i.e. the President was not competent to exercise power under section 92 of the Act for removal of the difficulties for giving effect to the provisions of the Act. 11. The observation of the learned Judge in the previous writ petitions was in the context of section 66 and it cannot be said on that basis that the Central Government i.e. the President was not competent to exercise power under section 92 of the Act for removal of the difficulties for giving effect to the provisions of the Act. 11. Section 66 has been referred to in the Removal of Difficulties Order for a limited purpose in order to include within its ambit all corporations etc. covered by section 66 instead of referring to them individually by their names. The Removal of Difficulties Order is a general order which applies to all such corporations etc. for which specific provisions have not been made in the Act. 12. It may be pointed out there that as regards the employees of the Bihar State Electricity Board or State Warehousing Corporation or Bihar State Road Transport Corporation, sub section (5) of section 62 contemplates transfer or re-employment of the employees of the Board/Corporation to or by the successor States. No provision regarding transfer etc. of the employees of the statutory corporations covered by section 66 being there in the Act, a way had to be found so that the employees could be apportioned/allocated/transferred between successor Corporations/Boards etc. So long as the Board remained and functioned as an inter-State body there was no difficulty. But after the Jharkhand Board came in existence, by law, as a parallel body, need arose for apportionment/allocation of the employees. Section 92 of the Act envisages situation of this type. Rightly, if I may say so, therefore, recourse was taken to the Difficulties Removal power under that section. As such I do not find any substance in the submissions relating to jurisdiction of the Central Government/President or validity of the Removal of Difficulties Order. 13. It was alternatively submitted that in terms of the Removal of Difficulties Order apportionment was to be made by mutual agreement between the successor States meaning thereby two governments in the name of the Governor. But what has been done is that the Administrators of two Boards finalised the apportionment/allocation on 26.3.2001 which has been blindly endorsed by a Committee on 21.6.2002. In any case, there being no representative of the Jharkhand State at the Ministers level it cannot be said to be allocation between the "successor States of Bihar and Jharkhand". But what has been done is that the Administrators of two Boards finalised the apportionment/allocation on 26.3.2001 which has been blindly endorsed by a Committee on 21.6.2002. In any case, there being no representative of the Jharkhand State at the Ministers level it cannot be said to be allocation between the "successor States of Bihar and Jharkhand". The submissions have been noticed only to be rejected. The Removal of Difficulties Order does not lay down that the allocation should be made in a particular manner or at the Ministers level. It only speaks of allocation between two successor States i.e. the States of Bihar and Jharkhand. The term State in the context has to be understood in the ordinary sense as geographical entity or entities and not beyond that. 14. It was then submitted on behalf of the petitioners that allocations were made without deciding any principle or laying down any guidelines. It was stated that the Government of India vide its letter dated 21.12.2000 has laid down guidelines in the matter of allocation of the government employees with liberty to the State Advisory Board which has been assigned the job of allocation, to consider any principle/ factor to ensure fair and equitable treatment to the employees. As a matter of fact, the State Advisory Committee too laid down guidelines and only thereafter considered actual allocation. It was submitted that the Board should have followed the model principle/guidelines or if so advised, laid down its own principles/guidelines but without doing anything of the kind arbitrarily and on pick and choose basis for extraneous consideration the lists were finalised on 26.3.2001 which have been reiterated on 21.6.2002. It was pointed out that Presidential order/notification was circulated by the Home (Special) Department on 12.4.2002 and within ten days, the earlier lists were reiterated on 22.4.2002. The Committee in its meeting on 21.6.2002 simply approved the said lists. 15. Though it has not been said so in the counter affidavit Shri S.D. Yadav, learned counsel appearing on behalf of both the Bihar and the Jharkhand Boards, submitted that the allocation has been made on the basis of roster points. As per the roster every third employee i.e. employees at serial nos. 1, 4, 7, 10 (and so on) of the list were allocated to the Jharkhand Board, while employees at serial nos. As per the roster every third employee i.e. employees at serial nos. 1, 4, 7, 10 (and so on) of the list were allocated to the Jharkhand Board, while employees at serial nos. 2, 3, 5, 6, 8, 9 (and so on) of the list were allocated to the Bihar Board. This, according to the counsel, was done by putting tick mark against the names of the employees to be allocated to the Jharkhand Board i.e. serial nos. 1, 4, 7, 10 and so on. I wanted to know from the counsel as to whether any formal decision to this effect that the employees at serial nos. 1, 4, 7 and so on would be allocated to the Jharkhand while employees at serial nos. 2, 3, 5, 6, 8, 9 and so on would be allocated to the Bihar Board was taken. I also wanted to see the file. The file was not produced. Instead, some documents were produced which apparently had been taken out from different files. Even those documents did not contain any decision to the above effect. Counsel stuck to his stand that the allocation was done simply by putting tick mark in the list against the names of concerned employees. Photo copies of the lists have been brought on record as enclosure to Annexure-A to the supplementary counter affidavit filed on 22.7.2002. 16. I would have expected the Board being a statutory body and an instrumentality of the State to have laid down principles/guidelines and then made the allocation in order to ensure transparency in action. However, even if the case of the Board is accepted that allocation was made on the basis of roster points by putting tick mark against names of the employees allocated to the Jharkhand Board, a close scrutiny of the list(s) does not bear out that the allocation has been made in that manner. The list of Section Officers (except those who superannuated by 31.12.2001) contains 44 names of Section Officers. As per the roster points, if they were to be allocated between the two Boards in the abovesaid manner, Shri Awadhesh Singh at serial no. 1, Shri Jagannath Prasad-2 at serial no. 7, Shri Jagdish Sah at serial no. 13, Shri Rameshwar Raut-1 at serial no. 34 and Shri Yogendra Das at serial no. 40 should have been allocated to the Jharkhand Board. 1, Shri Jagannath Prasad-2 at serial no. 7, Shri Jagdish Sah at serial no. 13, Shri Rameshwar Raut-1 at serial no. 34 and Shri Yogendra Das at serial no. 40 should have been allocated to the Jharkhand Board. Their names, however, do not find place in the list of Section Officers allocated to the Jharkhand Board. Similarly, in the case of Assistants, if the Board had followed the said principle, Shri Sachchidanand Singh at serial no. 4, Shri Ram Shobhit Singh at serial no. 13, Shri Sheoten Pasha at serial no. 25, Shri Kanchan Prasad at serial no. 28, Shri Yugal Kishore Pandey at serial no. 34, Shri Diwakar Jha at serial no. 40, Shri Qayamuddin at serial no. 46 and Shri Dayanand Prasad at serial no. 49 should have been allocated to the Jharkhand Board. However, their names too do not find place in the list of Assistants allocated to the Jharkhand Board. As a matter of fact, one Shri Bhola Mishra and Shri Jagnarain Singh though placed at serial nos. 3 and 5 have been allocated to the Jharkhand Board. Being at serial nos. 3 and 5 they should have been allocated to the Bihar Board as per the so called roster points. It is not necessary to refer to other lists to illustrate similar deviations. It is, thus, apparent that neither the Administrators on 26.3.2001 nor the Committee on 26.1.2002 adhered to the so called roster in finalising the allocation. This lends support to the petitioners case that the allocation has been made on pick and choose basis. 17. When the attention of Shri S.D. Yadav was drawn to the above discrepancies he submitted that on account of the financial constraints the Jharkhand Board was not ready to accept the service of 1 /3rd of the existing strength of the employees (212 out of 636) and therefore the number of staff to be allocated to Jharkhand Board was reduced to 164. Out of them 16 employees were already posted at Ranchi Branch office of the Board from before. 24 employees opted for being allocated. Thus only 125 persons were to be allocated. In the circumstances, the Board decided the names by lottery. Before making comments on this aspect of the case, I would like to refer to another dispute between the parties. 18. 24 employees opted for being allocated. Thus only 125 persons were to be allocated. In the circumstances, the Board decided the names by lottery. Before making comments on this aspect of the case, I would like to refer to another dispute between the parties. 18. A dispute arose in course of hearing as to whether any seniority/gradation list of the employees of the Board has been prepared or not. The dispute arose in the context of Annexure-9 to the writ petition in CWJC No. 5999/2002 containing list of the Section Officers of the Board. The attention of the Court was drawn to the said list on behalf of the petitioners to buttress the plea that the allocation has been made arbitrarily without taking into consideration seniority etc. of the employees. Denying the authenticity of Annexure 9 Shri S.D. Yadav took the stand that no gradation list of the employees has been prepared or maintained in the Board. He was asked to file affidavit in this regard. On 23.7.2002 second supplementary counter affidavit sworn by Shri Hasan Waris, Secretary, Bihar School Examination Board was filed, in paragraph 3 of which it has been stated that so far as Annexure-9 of the writ petition is concerned, no file/document is available in the (office of) Bihar School Examination Board. After the hearing concluded, the petitioners filed reply to the said affidavit wherein it has been stated that Annexure-9 was issued vide office order contained in Memo Estab. 317-Patna dated 10.10.98, with copies to the Personal Assistant to Administrator, Sr. P.A. to Secretary, all officers, all Sectional Officers and Special Officer, Divisional Office, Ranchi. Reference has been made to Despatch Register of the Establishment Section to show that Annexure-9 is an authentic document. 19. In my opinion, if it is a fact that there is no gradation/seniority list of the employees in the Board it is beyond comprehension as to how allocation could be made on the basis of roster points. Allocation of the employees on the basis of roster could be made with reference to the gradation/seniority list alone. It is only then that the employees at particular serial nos. arranged in order of seniority could be allocated to one or the other Board. Allocation of the employees on the basis of roster could be made with reference to the gradation/seniority list alone. It is only then that the employees at particular serial nos. arranged in order of seniority could be allocated to one or the other Board. In fairness to the Board it must be mentioned that in the (first) supplementary counter affidavit in para 4 it has been stated that a seniority list of Sectional Officers, Assistants, Routine clerks, fourth grade employees was prepared and published on the notice board. However, it is pertinent to point out that this was done only on or about 20.2.2001-as is evident from the notings from the file enclosed with the said affidavit as Annexure- A. From the relevant office notes it appears that due to certain complications uptodate seniority/gradation list of the employees could not be published as yet. The list prepared by the office was put up for approval and pasted on the notice board. The office notes/proposal passed through several hands and on the same day i.e. 20.2.2001 approved by the Administrator. It is clear that even if some kind of list purporting to be seniority or gradation list was prepared, employees were not given any opportunity to represent against their inter se placement as is normally done. The whole thing seems to have been done in great haste. It is on the basis of such list(s) that allocation was apparently made as per roster points. If allocation is made without preparing a proper seniority/gradation list, on the basis of roster points, it would result in arbitrariness and, therefore, on the own case of the Board the impugned allocation of the employees on the basis of so called roster points cannot be said to be in accordance with law. 20. It would appear that the stand of the Board is full of contradictions. As seen above, in course of hearing the stand was that there is no seniority list of the employees. But the (first) supplementary counter affidavit and Annexure-A thereof refer to some list(s). I have already made my comments above. Besides that, it is not clear why another list was prepared when already a seniority list had supposedly been prepared on or about 10.10.98 vide Annexure 9, and that too on the eve of allocation. But the (first) supplementary counter affidavit and Annexure-A thereof refer to some list(s). I have already made my comments above. Besides that, it is not clear why another list was prepared when already a seniority list had supposedly been prepared on or about 10.10.98 vide Annexure 9, and that too on the eve of allocation. Further, allocation does not seem to have been made as per that list in the sense roster points fixed per that list were ignored. No reason has been assigned as to why Shri Awadhesh Singh and Shri Jagannath Prasad-2 at serial nos. 1 and 7 respectively of the Section Officers list were not allocated to the Jharkhand Board. The plea that final allocation was made by lottery is neither here nor there. It is pertinent to mention that this has not been said so in the affidavit. It came only in oral submission of the counsel. Be that as it may, the fact that Jharkhand Board was not willing to accept services of 164 employees was known to the Administrators/committee and, therefore, if they wanted to allocate the employees on the basis of roster points they should have worked out a proper roster. Once they decided a roster of 1, 4, 7 (and so on) for the Jharkhand Board and 2, 3, 5, 6, 8, 9 (and so on) for the Bihar Board they should have made the allocation accordingly. Even if the story of allocation by lottery is believed it is not known when and in what manner lottery was held. There is no record of proceedings. In any view, it is clear that there was enough scope of manipulation. Even Shri S.D. Yadav seemed to be diffident on the point at the end of hearing. 21. In the facts and circumstances, the least that can be said is that the whole process has been not above board. The chances of allocation being arbitrary-made on pick and choose basis-cannot be ruled out. The Board as a statutory body and instrumentality of State is supposed to act in a fair manner. Not only that its action should be fair, it should also appear to be fair. That is lacking in the instant case. 22. In the result, for the reasons stated above, the impugned allocation of the employees vide memo nos. The Board as a statutory body and instrumentality of State is supposed to act in a fair manner. Not only that its action should be fair, it should also appear to be fair. That is lacking in the instant case. 22. In the result, for the reasons stated above, the impugned allocation of the employees vide memo nos. 4419, 4420, 4421 and 4422 dated 22.4.2002 as well as the decision of the committee dated 21.6.2002 communicated by memo no. 372 dated 1.7.2002 are quashed so far as they relate to the petitioners. The respondents are directed to work out fresh allocation according to law. The writ petitions are allowed accordingly.