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2007 DIGILAW 753 (PAT)

M. Akbar Ali v. Union Of India

2007-04-14

AFTAB ALAM

body2007
Judgment 1. The petitioner is aggrieved by and seeks to challenge the allocation of his service to the State of Jharkhand. He is given to Jharkhand by a decision of the Central Government following the recommendation of the State Level Advisory Committee. In pursuance of the decision of the Central Govt, the petitioner, alongwith a number of other employees, was finally relieved from the service of the State of Bihar by an office order issued by the Dy. Secretary, Department of Health & Family Welfare under his memo no. 122, dated 28.6.2006 (Annexure 5). 2. The petitioner was appointed as Refrigerator Mechanic by an order of the Civil Surgeon-cum-Chief Medical Officer, Katihar under memo no. 1437, dated 17.6.1987. By a Tele-printer message, dated 10.10.1991 from the Dy. Director, Health Services (Family Welfare), the petitioner was directed to join in the office of the State Immunization Officer, Patna and he was accordingly relieved from Katihar on 24.10.1991 by the order of the Civil Surgeon. On coming to Patna he was directed to work at the Public Hearth Institute and was given the charge of maintenance of the deep freezer and the Refrigerator there by order of the Director, Health Services, dated 15.1.1993. Since then he was working in the Public Health Institute, Patna when on the division of the State his service was allocated to the newly created State of Jharkhand as noted above. 3. According to the counter affidavits by the State, there were three posts of Refrigerator Mechanic at Patna. One of those was lying vacant while the petitioner and one Mithilesh Kumar Singh were working on the other two posts. It was further stated that Mithilesh Kumar Singh was both senior to the petitioner and he had given his option to stay in the State of Bihar while no option was given by the petitioner. The names of both the petitioner and Mithilesh Kumar Singh were sent to the State Level Advisory Committee alongwith the aforesaid facts. 4. According to the State Level Advisory Committee out of the three posts one was allocated to the State of Jharkhand and as the petitioner was junior and he had not given any option, his service was allocated to the newly created State. 5. 4. According to the State Level Advisory Committee out of the three posts one was allocated to the State of Jharkhand and as the petitioner was junior and he had not given any option, his service was allocated to the newly created State. 5. At this stage it may be noted that the State Level Advisory Committee was set up by the Central Govt, under Sec.25 of the Bihar Reorganisation Act to finalise the distribution of posts between Bihar and Jharkhand "for each cadre and group of State level posts, which were liable to be apportioned between the two States". It is noted above that the petitioner was appointed as a Refrigerator Mechanic in Katihar and his appointment was made by the Civil Surgeon-cum-Chief Medical Officer, Katihar. A question, therefore, arose whether the post of Refrigerator Mechanic can be said to be a post of State cadre or one of a group of State level posts. In this regard it is stated vide para 6 of the supplementary counter affidavit that before 16.12.1992 there were thirty seven posts of Refrigerator Mechanics in the different districts of Bihar. These were admittedly district level posts and payment of salary for the posts was sanctioned on a year-to-year basis. By sanction order no. 1717, dated 16.12.1992 the district level posts of Refrigerator Mechanic at Saharsa, Khagaria and Katihar were transferred to H.E.R. Unit running under R.C.H. Cell of the State Family Welfare Bureau, Patna. Pursuant to the transfer of the posts from the three districts the salary of the employees was being paid by the State Family Welfare Bureau, Patna. It is further stated that since the posts of Refrigerator Mechanic were transferred from three districts to Patna, they no longer fell in the respective district cadres. 6. I have my reservations on the issue. The posts were admittedly sanctioned for each district and were district level posts. The posts from three districts were transferred to Patna for administrative reasons and a drawing and disbursing officer was appointed at Patna for payment of salary to the incumbents of those posts. That would not make the three posts of Refrigerator Mechanics a State cadre or a group of posts at the State level. The posts from three districts were transferred to Patna for administrative reasons and a drawing and disbursing officer was appointed at Patna for payment of salary to the incumbents of those posts. That would not make the three posts of Refrigerator Mechanics a State cadre or a group of posts at the State level. It, therefore, follows that the three posts of Refrigerator Mechanics at Patna did not fall within the jurisdiction of the State Advisory Committee for their distribution between Bihar and Jharkhand and the case of the petitioner was wrongly referred to that committee. That being the position the recommendation of the State Level Advisory Committee and following it the decision of the Central Govt, to allocate his service to the State of Jharkhand are untenable. The office order, dated 28.6.2006 is accordingly quashed in so far as the petitioner is concerned. It is held and declared that the petitioner continues to be an employee of the State of Bihar and shall continue to remain so until a proper and lawful allocation of his service is made by a competent authority. 7. In the result, this writ petition is allowed but with no order as to costs.