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2011 DIGILAW 133 (JHR)

Tapeshwar Choudhary v. State of Jharkhand

2011-02-25

R.R.PRASAD

body2011
Order Learned counsel appearing for the petitioner submits that the petitioner was appointed as .Junior Engineer in the State of Bihar on 30.4.1983. In spite of rendering services to the satisfaction of the authorities, when the petitioner was not promoted to the higher post, he moved an application before this Court, vide W.P.(C) No. 3538 of 2002 for a direction 10 the respondents-authority to consider the case of promotion of the •petitioner. In that case, it was placed before this Court that a decision is to be taken by the State of Bihar with the consent of the State of Jharkhand, as the cadre has not been bifurcated. The case was disposed of directing the Secretary, P.H.E.D., Government of Jharkhand to take a decision on the request letter dated 13.2.2002 received from the Secretary, P.H.E.D., Government of Bihar relating to promotion of the petitioner and others. 2. Pursuant to that, concurrence was given by the State of Jharkhand for taking decision in the matter of promotion of the petitioner. Upon which vigilance clearance was taken from the Bihar Public Service Commission and only on that basis, the petitioner was promoted to the post of Executive Engineer vide Notification No. 9205 dated 11 .12.2002 by the State of Bihar. Thereupon, the petitioner started discharging his duty on the promoted post in the territory of State of Jharkhand but all on a sudden, the respondents came with an order dated 4.9.2010, as contained in Annexure-6, whereby the promotion given to the petitioner earlier by the State of Bihar was cancelled on the ground that on the appointed day i.e. 15.11.2000, quota, meant for Scheduled Castes to the extent of 10%, was full and as such, no vacancy has been existing against the Scheduled Caste category. The said order has been challenged to be bad. 3. Learned counsel further submits that from a Circular, issued by the Central Government, it is evident that the cadre Controlling Authority in respect of officers provisionally posted in the State of Jharkhand would be the State of Bihar until final allocation is made and further the clarificatory order, as contained in Annexure-A to the counter affidavit filed on behalf of the respondent no. 2, stipulates that the State of Bihar is competent to take decision in the matter of promotion to the extent of 60% of the total vacancy, which falls to the share of the State of Bihar and thus, this clarificatory order fully establishes that the State of Bihar was the Competent Authority to take decision in the matter of promotion after seeking consent from the State of Jharkhand which had already been given by the State of Jharkhand and under that situation, it was not within the competence of the State of Jharkhand to withdraw that order under which promotion was given to the petitioner. 4. Learned counsel further submits that on other ground also, the order under which promotion was given to the petitioner, cannot be cancelled or withdrawn in view of the provision, as contained in proviso to Section 73 of the Bihar Reorganization Act, 2000, stipulating therein that the service conditions of the persons applicable immediately before the appointed day shall not be varied to their disadvantage except with the previous approval with the Central Government and, therefore, the order, as has been passed under Annexure6, is certainly disadvantageous to the interest of the petitioner and hence, the same cannot be passed by the State of Jharkhand without having approval of the Central Government and on this count also, the impugned order is fit to be set aside. 5. As against this, Mr. D.K. Dubey, G.P.-I, submits that it is true that while the petitioner was serving in the State of Jharkhand, the State of Bihar on account of non-division of the cadre took a decision to promote the petitioner to the post of Assistant Engineer but that promotion was provisional and it was subject to certain conditions stipulated in a letter bearing No. 1079 dated 28.2.2004 issued by the Personnel and Administrative Reforms. However, copy of the same was never filed. 6. He would further submit that by the time decision was taken by the State of Bihar relating to the promotion of the petitioner, the Jharkhand Reservation Act was promulgated, vide Notification No. 3465 dated 3.12.2001 whereby only 10% post has been earmarked for promotion to the category of Scheduled Caste.. In this respect, it was further pointed out that altogether 132 posts of Assistant Engineers were earmarked for the State of Jharkhand. In this respect, it was further pointed out that altogether 132 posts of Assistant Engineers were earmarked for the State of Jharkhand. Out of which, as per the rule, 28% of the post, i.e. 37 posts are to be filled up from the quota of Junior Engineer and of it 10% posts, i.e. 4 posts are to be filled up from Junior Engineers belonging to Scheduled Caste category. 7. It was further pointed out that as against 4 posts meant for Scheduled Caste candidates, 9 persons of the same category were posted in the State of Jharkhand, meaning thereby that 5 posts are in excess than the admissible quota fixed under Clause 16 of the Jharkhand Reservation Act and under this situation, the order was passed whereby the petitioner was reverted to the post of Junior Engineer and as such, no illegality has been committed. 8. Having heard learned counsel appearing for the parties, it does appear that it has. not been in dispute that this petitioner was provisionally promoted to the post of Assistant Engineer by the State of Bihar in compliance of the order passed by the Patna High Court and on getting recommendation by the Bihar Public Service Commission and also after having clearance from the State of Jharkhand, vide order as contained in letter no. 9205 dated 12.11.2002. After 8 years, the State of Jharkhand, vide its order as contained in memo no. 3650 dated 4.9.2010 (Annexure 6) has passed order of reversion to the post of Junior Engineer on the ground which has been taken in the counter affidavit and has been highlighted by the learned counsel appearing for the State in his submission. It is also the stand of the State that the order of promotion was qualified with certain conditions and was issued with a stipulation that such order of promotion may get adversely affected due to final cadre division and in that event, the petitioner cannot put forth any claim. It would be better to point it out those conditions which are being given herein below: 1. The promotion might be adversely affected due to final cadre division and thereafter on determination of seniority. 2. In case of adverse effect on promotion concerned engineers would not be entitled to any claim. 9. It would be better to point it out those conditions which are being given herein below: 1. The promotion might be adversely affected due to final cadre division and thereafter on determination of seniority. 2. In case of adverse effect on promotion concerned engineers would not be entitled to any claim. 9. Thus, the question is as to whether the impugned order as contained in Annexure-6 under which the petitioner was reverted from the post of Assistant Engineer to Junior Engineer is justified? 10. For deciding this issue, it would be relevant to refer the provision as contained in Sections 72 and 73 of the Bihar Reorganization Act: '72. Provisions relating to services in Bihar and Jharkhand.-(1) Every person, who immediately before the appointed day is serving in connection with the affairs of the existing State of Bihar shall; on and from that day 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: Provided that no direction shall be issued under this section after the expiry of a period of one year from the appointed day. 1. As soon as may be after the appointed day, the Central Government shall, by general or special order, determine the successor State to which every person referred to in sub-section (1) shall be finally allotted for service and the date with effect from which such allotment shall take effect or be deemed to have taken effect. 2. Every person, who is finally allotted under the provisions of subsection (2) to a successor State shall if he is not already serving there in be made available for serving in the successor State from such date as may be agreed upon between the Governments concerned or in default of such agreement, as may be determined by the Central Government. 73. 73. Other provisions relating to services.-(I) Nothing in Section 72 shall be deemed to affect on or after the appointed day the operation of the provisions of Chapter-I of Part-XIV of the Constitution in relation to determination of the conditions of service of persons serving in connection with the affairs of the Union or any State: Provided that the conditions 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. (2) All services prior to the appointed day rendered by a person- (a) If he is deemed to have been allocated to any State under Section 72, shall be deemed to have been rendered in connection with the affairs of that State; (b) if he is deemed to have been allocated to the Union in connection with the administration of the Jharkhand shall be deemed to have been rendered in connection with the affairs of the Union, for the purposes of the rules regulating his conditions of service. (3) The provisions of Section 72, shall not apply in relation to members of any All India Service." 11., Thus, the provisions as contained in Section 73 of the Act does stipulate that the 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 shall not be varied to his 'disadvantage except with the previous approval of the Central Government. 12. 12. It may be reiterated that the petitioner has been promoted by the State of Bihar after getting recommendation of the Bihar Public Service Commission, Vigilance clearance and also with the consent of the State of Jharkhand and also keeping in view the vacancies against the sanctioned strength which would be evident from the letter dated 13.2.2002 issued by the Commissioner and Secretary, P.H.E.D., Government of Bihar to the Secretary, P.H.E.D., Government• of Jharkhand (Annexure-13) but now the impugned order of reversion has been passed by taking the stand that the sanctioned strength of the Assistant Engineer for the category of Scheduled Tribes is only 4 and as against that, 9 persons have been posted and as such, continuation of the petitioner on the post of Assistant Engineer is not permissible under Clause 16 of the Jharkhand Reservation Act. 13. It would be worthwhile to note here that before the• appointed day, i.e. 15.11.2000 the service condition of the petitioner was never governed by such Act and as such, the provision of the said Act cannot be enforced in case of the petitioner in view of the embargo put under Section 73 of the Bihar Reorganization Act which does stipulate that service condition cannot be varied to the disadvantage except with the previous approval of the Central Government. Admittedly, no such approval has been taken by the Central Government before the order as contained in Annexure-6 was passed. 14. Under that situation, the authority by passing the order as contained in Annexure-6 without the approval of the Central Government has certainly committed gross illegality and hence, the order as contained in Annexure-6 is hereby set aside. 15. In the result, this application is allowed.