Judgment 1. C.W.J.C. No. 10476 of 2002, which gave rise to L.P.A. No. 157 of 2003, C.W.J.C. No. 10369 of 2002, which gave rise to L.P.A. No. 246 of 2002 and C.W.J.C. No. 10524 of 2002, which gave rise to L.P.A. No. 247 of 2003 and two other writ applications were disposed of by a common order dated 30.1.2003 passed by a learned Single Judge, whereby the writ applications filed by the writ petitioners were allowed and a direction was issued that till the liabilities between the two Boards, i.e. the Bihar State Electricity Board and the Jharkhand State Electricity Board, are finally determined, the respective Boards should pay the pensionary dues including arrears to the employees retired/retiring from the area now falling under them subject to final accounting/adjustment of their liabilities and the said direction will apply in the case of all pending claims of such employees including those who are already receiving pension and the respective Boards shall discharge their liabilities with respect to them. The learned Single Judge further directed that the respective Boards shall discharge their liabilities accordingly by determining the dues payable to all such pensioners and forward the relevant papers within one week to the concerned Board for payment and the concerned Board shall pay the admitted dues within a week thereafter and further both the Boards were directed to proceed for confirmation of actual figures with respect to ratio of consumption of power and determine their liabilities as per the agreement dated 5.3.2001 positively within one month, failing which, this Court shall consider to initiate contempt proceeding suo motu. 2. C.W.J.C. No. 13080 of 2002, which gave rise to L.P.A. No. 248 of 2003 and C.W.J.C. No. 13585 of 2002, which gave rise to L.P.A. No. 249 of 2003, were disposed of by orders dated 11.2.2003 and 24.2.2003, respectively, wherein directions were issued in terms of the directions issued earlier for payment of pensionary dues, including arrears to the writ petitioners of the said cases. 3. The admitted facts are that on 15.11.2000, the State of Jharkhand was created out of the State of Bihar under section 3 of the Bihar Reorganisation Act, 2000 (hereinafter referred to as the Act). Prior to that, on 24.10.2000 (Annexure 3 of L.P.A. No. 157/03). 3. The admitted facts are that on 15.11.2000, the State of Jharkhand was created out of the State of Bihar under section 3 of the Bihar Reorganisation Act, 2000 (hereinafter referred to as the Act). Prior to that, on 24.10.2000 (Annexure 3 of L.P.A. No. 157/03). the Bihar State Electric-ity Board (hereinafter referred to as the Board) took a decision to revise the pay scale of its employees with effect from 1.1.1996 on the basis of the recommendation of the Pay Revision Committee with monetary benefits with effect from 1.4.1997. On 24.2.2001, a decision was also taken by the Board for revision of pension and other retirement benefits of the employees of the Board. However, a condition was imposed in the said decision that the question Of payment of arrears of retirement benefit to the employees already retired would be decided by the Board in due course subject to availability of the funds (Annexure 4 to L.P.A. No. 157/2003). 4. After creation of the two States, in exercise of the power under section 62(4) of the Act, the State of Jharkhand created the Jharkhand Electricity Board (hereinafter referred to as the Jharkhand Board) with effect from 10.1.2001. According to sub-section (4) of section 62 of the Act, after creation of the Board, the Central Government has to make a provision enabling the new Board or the new Corporation to take over from the existing Board or Corporation all or any of its undertakings, assets, rights and liabilities in that State. Sub-section (3) of the said section provides that the existing Board shall cease to function as from, and shall be deemed to be dissolved on such date as the Central Government may, by order, appoint; and upon such dissolution, its assets, rights and liabilities shall be apportioned between the successor States of Bihar and Jharkhand in such manner as may be agreed upon between them within one year of the dissolution of the Board or the Corporation, as the case may be, or if no agreement is reached, in such manner as the Central Government may, by order, determine. Section 62(4)(b) of the Act provides that once the dissolution of the existing Board or Corporation takes place, any assets, rights and liabilities, which would otherwise have passed to that State by or under the provisions of sub-section (3) shall pass to the new Board or the new Corporation instead of to that State. 5. A meeting was held between the two States on 5.3.2001 to discuss the division of assets and liabilities of the Board in presence of the Joint Secretary, Ministry of Power, Government of India and a copy of minutes ot the meeting has been appended as Annexure 6 to L.P.A. No. 157/2003.The Members agreed for division of assets and liabilities between the two States, which are as follows : "(i) Assets : to be divided on the geographical nexus on as is where is basis. (ii) Liabilities: The liabilities of BSEB to be divided on the basis of ratio of energy consumed in Bihar and 1 Jharkhand which is 54 : 46 which may be confirmed from actual figures. (iii) Staff: Jharkhand proposed that staff of BSEB be divided in ratio of 2:1 between Bihar and Jharkhand as done in case of other staff of undivided Bihar. Bihar proposed ratio of 54 : 46 as per energy consumed. It was then left to Government of India to determine the ratio. It was also agreed that a Committee of five members will be constituted, of which two members shall be nominated by Bihar Government and two by the Jharkhand Government. The Chairman of the Committee will be appointed on consensus between the two State Governments, failing which by the direction of Government of India. This Committee will examine the issues concerning divisions of staff as well as vacant posts. (iv) It was also agreed that pending formal division of staff between the BSEB and JSEB, the existing staff will continue to work on as is where is basis and no transfers and postings will be frozen till the formal division takes place except with the consent of the two governments." 6. According to paragraph 8 of the said minutes, it was also agreed that Government of India may issue orders under section 62(4)(a) of the Act as per principles agreed between the two States as above at the earliest. According to paragraph 8 of the said minutes, it was also agreed that Government of India may issue orders under section 62(4)(a) of the Act as per principles agreed between the two States as above at the earliest. Thereafter, the Government of India issued a provisional order on the basis of the said agreement under section 62(4)(a) of the Act on 22.3.2001 dividing the assets and liabilities, which was effective from 1.4.2001. According to the provisional order, the Committee under the chairmanship of Shri R.N. Srivastava, Former Chairman, C.E.A., was appointed to examine the issue concerning division of staff and vacant posts on the ratio of consumption of power. The Committee has submitted a report, which has been sent to both the States for their comments, if any. Again a meeting was held on 5.9.2001, where the Secretary(E), Government of Jharkhand, challenged the authority of the earlier Secretary for accepting the proposal with regard to apportionment of liabilities on the ratio of consumption of power as agreed in the meeting dated 5.3.2001. In the said meeting, it was noticed that the order issued by the Government of India on 22.3.2001 was a provisional order and final order is yet to be issued. It was decided that the existing Board should be dissolved on 15.11.2001 as agreed between the two States. It was further informed to both the States that the two States have one year time to reach an agreement on the issue of final division of assets and liabilities, failing which, orders dividing the assets and liabilities finally will be issued by the Government of India. It is admitted position that up till now the assets and liabilities have not been determined and the controversy is going on between the two Boards. A copy of the minutes of the said meeting dated 5.9.2001 has been appended as Annexure 10 to L.P.A. No. 157/03. 7. There is no dispute also that the Jharkhand High Court is monitoring the progress of the adjudication of division of liability between the two successor Boards in L.P.A. No. 355 of 2002 (Jharkhand State Electricity Board vs. Jhabbo Pandit and Ors.). 7. There is no dispute also that the Jharkhand High Court is monitoring the progress of the adjudication of division of liability between the two successor Boards in L.P.A. No. 355 of 2002 (Jharkhand State Electricity Board vs. Jhabbo Pandit and Ors.). It is also admitted, as appears from Annexure 11 to L.P.A. No. 157/03, that the Central Government has appointed the Chairman of the Central Electricity Authority, as an independent agency to ascertain the total liabilities and their classification as per criterion laid down in the order dated 22.3.2001. It is also provided therein that while doing the above work, he will also make recommendation of the Central Government on the division of pension liability of BSEB between Bihar and Jharkhand, ascertain the proportion of assets (of BSEB) that have been passed on the both States on the principle of geographical nexus and will also ascertain the consumption pattern of the power in both the States. 8. The writ petitioner-respondents filed their respective writ applications either for payment of retiral dues, or for payment of arrears of salary as well as the arrears of retiral dues on the basis of revision of pay and other retiral benefits. 9. Mr. Mihir Kumar Jha, learned counsel appearing for the appellant-Board in all the appeals stated that after bifurcation of the State of Bihar and creation of Jharkhand Board, the income of the appellant-Board has dropped down. Before bifurcation, the income of the Board was about Rs. 131 crores, which has come down to Rs. 65 crores, whereas, the total expenditure of the Board is about 80 crores. As there has been no final determination of the assets and liabilities, 84% of the liabilities is being incurred by the appellant-Board. Out of 15000 retired employees of the erstwhile Board, 12540, approximately, were drawing their pension and other retirement benefit from the office of the appellant-Board, whereas, 2460, approximately, were drawing their pension and other retirement benefit from the office of the Jharkhand Board. Out of 15000 retired employees of the erstwhile Board, 12540, approximately, were drawing their pension and other retirement benefit from the office of the appellant-Board, whereas, 2460, approximately, were drawing their pension and other retirement benefit from the office of the Jharkhand Board. In view of its financial crunch, the appellant-Board took a decision on 18.4.2001 that for the time being it would pay only the revised pension/family pension in the revised pay scale with effect from 1.5.2001 and in respect of payment of remaining arrears of retirement benefits on account of revision of pay scale; such as commutation of pension, gratuity, leave encashment and the arrears of pension prior to the period of 1.5.2001 as well as arrear salary of the retired employees, the earlier decision dated 24.2.2001 was kept operative. In other words, the aforesaid arrears will be paid after the financial position of the Board improves. He further submitted that so far as the directions issued by the learned Single Judge for payment of retiral dues are concerned, the appellant-Board has no objection to pay the retiral dues but it will be in terms of its policy decision taken on 24.2.2001, read with the decision dated 18.4.2001. In other words, the pensionary benefits will be paid to all the employees retired on 1.5.2001 and thereafter, and those, who have retired earlier, will also be given the benefit of revised pension from that day but the arrears of pension as well as other retiral benefits shall be paid after the financial position of the appellant-Board improves. It was also stated that if the total arrears of retiral benefits etc. would be ordered to be paid, then the Board has to incur expenditure of Rs. 308 crores, which is not possible at present and the Board has to be closed. He further submitted that so far as the final determination of assets and liabilities is concerned, as the matter is subjudice before the Jharkhand High Court and no final decision has been taken be tween the two Boards and in case of their failure, the Central Government will finally decide the matter, the learned Single Judge should not have issued any direction to km respective Boards with regard to final determination of the liabilities as per the agreement dated 5.3.2001 within the period specified. 10. 10. Learned counsel appearing for the writ petitioner-respondents, on the other hand, submitted that the action of the Board in not paying the arrears of pension and other retiral benefits on the basis of revision of scale of pay to the employees having retired prior to 1.5.2001 is arbitrary and discriminatory and the learned Single Judge has rightly ordered for payment ot the same. 11. After having heard learned counsel for the parties and going through the records, the admitted fact is that now two Boards are functioning, namely, the appellant-Board and the Jharkhand Board after its creation by the State Government of Jharkhand in terms of the notification as mentioned above. It is also an admitted position that a meeting has been held between the two States for division of the assets and liabilities, but no final decision has been taken. No doubt, a provisional decision has been taken by the Central Government in terms of section 62 of the Act, but final determination of the assets and liabilities is yet to be made. The Central Government has also appointed the Chairman, Central Electricity Authority, as an independent agency, which is evident from Annexure 11 as stated above. 12. In view of the fact that, no final determination of assets and liabilities between the two Boards has been made and no final notification has been issued by the Central Government and the matter is pending before the Jharkhand High Court, it is not proper for this Court to issue a direction to both the Boards to finally take a decision with regard to assets and liabilities, specially when there was nothing on the record to show that the Chairman of the Central Electricity Authority, as directed by the Central Government, has submitted a report, to which both the Boards have agreed. Accordingly, the direction given by the learned Single Judge to the appellant Board and the Jharkhand Board to proceed for confirmation of actual figures with respect to ratio of consumption of power and determine their liabilities as per the agreement dated 5.3.2001 is set aside. 13. Accordingly, the direction given by the learned Single Judge to the appellant Board and the Jharkhand Board to proceed for confirmation of actual figures with respect to ratio of consumption of power and determine their liabilities as per the agreement dated 5.3.2001 is set aside. 13. As stated above, the learned counsel for the appellant-Board has no objection to the payment of retiral benefits to the employees, who are getting the same from before in the Board and has stated that in terms of the decision of the Board, retiral benefits have been paid to alI the writ petitioner-respondents. His grievance is only with regard to direction for payment of arrears of salary and arrears of retiral dues to the employees, who have superannuated prior to 1.5.2001. This Court does not find any legal infirmity in the said decision. The Board is paying the revised pension to the employees, who have retired prior to 11.5.2001 with effect from that date, but has only withheld the arrears of pension and other arrears on the basis of revision of pay due to financial crunch as stated above. It is a temporary stoppage till the improvement of financial condition of the Board as well as the final determination of the assets ,and liabilities. The said decision taken by the Board is based on sound classification and the same cannot be said to be either arbitrary or discriminatory. From the relevant date, the employees, who have retired prior to 1.5.2001, are also getting the revised pension. The said stoppage is only nith regard to the arrears as indicated above, which has been necessitated because of the financial condition of the appellant-Board. 14. Earlier, a Division Bench of this Court in L.P.A. No. 343 of 2002, disposed of on 4.2.2003* has held that the said decision of the appellant-Board is valid one and other retiral dues in the revised scale of pay shall be paid by the Board after the final distribution of the assets and liabilities is completed by the Central Government in terms of the provisions as contained in the Act. 15. Thus, the direction given by the learned Single Judge for payment of arrears of retiral dues to the employees, who have retired prior to 1.5.2001, is set aside. 16. In the result, all the five appeals are allowed in part to the extent as indicated above.