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2007 DIGILAW 1247 (PAT)

Braj Bhushan Singh v. Union Of India

2007-07-31

AJAY KUMAR TRIPATHI

body2007
Judgment 1. Heard counsel for the parties. 2. Petitioner by way of this writ application wants a direction upon the respondents of Bihar Agriculture Marketing Board to relieve him from service to enable him to join Jharkhand State Agriculture Marketing Board at Ranchi. He also wants a direction upon the respondents of Jharkhand to accept his joining on the post of Market Supervisor. He has also sought payment of certain salary and revision of pay-scale as such. 3. The basis for making such a claim is a notification dated 10.11.2001 which is Annexure-2 in the present writ application. By virtue of this order 13 persons were ordered to be transferred on a provisional basis to Jharkhand. This according to the petitioner is the notification by virtue of which the allocation of cadre was made but it seems that since the year 2001 nothing came to be done by either side and this notification only remained on paper. Petitioner suddenly was compelled to file the present writ application on 15.11.2006. In other words almost five years have gone past since Annexure-2 was issued but the reason which forced the hands of the petitioner to move this Court was certain developments which had taken place a couple of months ago before the filing of the writ application. By virtue of a legislation the State of Bihar decided to dissolve Bihar State Marketing Board on 1.7.2006. Since the Board was dissolved petitioner wanted to escape to Jharkhand to a body which was still in existence based on an earlier communication dated 10.11.2001. Petitioner on being questioned has tried to explain that he has tried to prevail upon the respondents to relieve him earlier but nothing of the kind was done by them. He has brought a hand written communication contained in Annexure-9 as a proof that he had moved the Managing Director to relieve him and since nothing came to be done thereafter, therefore he has filed the writ application in November 2006. In the opinion of this Court this is no satisfactory explanation as such because even if the petitioner was considered to have some right to cross over to the State of Jharkhand based on the notification dated 10.11.2001 his first step in this regard was made in 2003 and the writ was filed in 2006 when the Board stood dissolved. 4. 4. The basic submission of the petitioner is that he is an employee of the headquarters because he is a Superivsor and his appointment was by the headquarters, therefore, he should be treated as a headquarter employee and even otherwise in terms of the notification dated 13.9.2004 issued by the Ministry of Home, Government of India he is entitled to allocation in the ratio in which the same said notification has allowed bifurcation. The notification dated 13.9.2004 is Annexure-A to the counter affidavit filed on behalf of the Marketing Board of Bihar. The said notification envisages division of assets and liability as well as division of employees between Bihar Board as well as the Jharkhand Board. In this regard it Is important to take note of that part of the notification which has relevance in-the present case, which is quoted hereinbelow: (iii) Employees: (a) All regular employees posted against sanctioned posts approved by the erstwhile Board as on 14.11.2000 would be divided on "as is where is" basis. (b) Employees posted in the Board headquarters against sanctioned posts approved by the erstwhile Board as on 14.11.2000 would also be divided in the same proportion as cash balance and movable assets as in (i)(b) above. 5. From perusal of the above notification and the portion relating to bifurcation of the employees two things are apparent, one that only regular employees posted against sanctioned post approved by the erstwhile Board as on 14.11.2000 would be divided on "as is where is" basis. In other words those posted in State of Bihar will continue to be posted in State of Bihar and those posted in newly formed State of Jharkhand would be treated as employees under Jharkhand. The second category talks of about those persons who are posted in the Board headquarters as on 14.11.2000. Petitioner was not posted at the headquarter on the appointed date. Learned counsel for the petitioner therefore submits that this part of the notification should be read to mean persons of headquarters cadre. Posting of an employee should not be considered to be the basis on which the bifurcation should be made as per Clause (b) of (iii). According to the petitioner this would be in the interest of justice because as already submitted by him he claims himself to be a headquarter employee. Posting of an employee should not be considered to be the basis on which the bifurcation should be made as per Clause (b) of (iii). According to the petitioner this would be in the interest of justice because as already submitted by him he claims himself to be a headquarter employee. This Court has certain difficulty in accepting such interpretation which has been given by petitioner because the expression used in the notification is quite clear and it talks about employees posted in the Board headquarters against sanctioned post approved by the erstwhile Board, it does not talk in terms of headquarters cadre employees. 6. In any view these are mere jugglery of words and that shall not decide the issues in question. The fact is that the earlier notification contained in Annexure-2 dated 10.11.2001 was not an order allocating the cadre of petitioner. It was an ad hoc arrangement made at the time in the contingency of the situation. The said notification cannot be treated as an order of allocation of cadre and, therefore, the same cannot be made the basis on which the petitioner can be permitted to be relieved from Bihar and join Jharkhand. This Court would like to record that in a similar matter a single Bench of this Court passed an order which came to be challenged by the respondent Bihar State Agriculture Marketing Board in L.P.A. No. 225 of 2006* by virtue of an order dated 31.3.2006 a Division Bench of this Court also laid down the law. The things as they stand today is that allocation of cadre or division of employees will have to be in conformity with the law and in conformity with the notification which the Central Government has issued in this regard under the Bihar Reorganisation Act. Petitioner cannot be permitted any different benefit contrary to what the law provides as well as is envisaged in the given facts more so when Annexure-2 dated 10.11.2001 was not an order of allocation of cadre. 7. The writ application of the petitioner, therefore, is misplaced and there is no occasion for this Court to grant him relief which he has sought. The writ application stands dismissed being devoid of any merit.