Research › Search › Judgment

Jharkhand High Court · body

2011 DIGILAW 215 (JHR)

Anand Kumar v. State of Jharkhand

2011-03-17

J.C.S.RAWAT

body2011
Order This writ petition under Article 226 of the Constitution of India has been filed by the petitioner seeking the relief by way of quashing of the office order dated 16.1.2007(Annexure-7) whereby the claim of the petitioner for payment of salary for the period from 29.11.2003 to 7.1.2004 and 13.2.2004 to 31.5.2004 which were sanctioned by the respondent as an extraordinary leave under the provisions of Rule 180(b) of the Bihar Service Code and for issuance of direction to the respondents to make payment of arrears of salary for the aforesaid periods. 2. Facts of the case in a nutshell is that the petitioner had been working as the Range Officer, Garalu Depot Range, Monghyr Division, and at that time, some misconduct was allegedly committed by the petitioner pursuant to which he was put under suspension which was ultimately revoked. Thereafter, the petitioner was transferred in the year 2004 to the State of Jharkhand as the Range Officer and the petitioner was finally allocated to the State of Jharkhand and he joined the State of Jharkhand in 2004 itself. Thus, the petitioner had been a permanent employee of the State of Jharkhand. After allocation, the successor State of Bihar passed an order on 16.1.2007 wherein the petitioner was allowed from 29.11 .2003 to 7.1.2004, and from 13.2.2004 to 31.5.2004 extraordinary leave under the provisions of Rule 180 (b) of the Bihar Service Code. The said order was passed consequent upon his absence from duty to join at Monghyr/Jamui (under the jurisdiction of Division Forest Officer Jamui) where he was refused to join which was reported to the Conservator of Forest, Bhagalpur. Feeling aggrieved by the said order, the present writ petition has been filed by the petitioner. 3. The moot question which arises for consideration is whether the order contained in Annexure-7. dated 16.1.2007 passed by the Principal Chief Conservator of Forest, Bihar for treating his period as absence on extraordinary leave under the provisions of rule 180 (b) of the Bihar Service Code is within the jurisdiction of the said officer of the State of Bihar. 4. The moot question which arises for consideration is whether the order contained in Annexure-7. dated 16.1.2007 passed by the Principal Chief Conservator of Forest, Bihar for treating his period as absence on extraordinary leave under the provisions of rule 180 (b) of the Bihar Service Code is within the jurisdiction of the said officer of the State of Bihar. 4. Learned counsel for the petitioner contended that the State of Jharkhand, the successor State, was bifurcated on 15.11.2000 and thereafter, the employees who were either been working in the State of Jharkhand or who were allocated provisionally to the State of Jharkhand, the State of Bihar has no jurisdiction to pass any order against such employees. The impugned order 16.1.07 has been passed by the Principal Chief Conservator of Forest, Bihar against the petitioner, who has finally been allocated to the State of Jharkhand on 26.4.2004. 5. Learned counsel for the State of Bihar refuted the said contention and contended that the impugned order was passed by the Principal Chief Conservator of Forest (Bihar) a copy of which has been sent to the Jharkhand State. Thus, the order impugned in this writ petition is within the jurisdiction of the State of Bihar. 6. I have heard the learned counsel for the parties. It is evident from the Section 74 of the Reorganisation Act, that persons serving in a particular successor State have been finally allocated to serve in the successor State and other category of persons were provisionally allocated to serve the successor State in connection with the affairs of the successor State, for those employees, Section 74 of the Bihar Reorganisation Act provides a deeming provision wherein it is provided that if a person who was holding or discharging the duties of any post or office in connection with the affairs of the existing State of Bihar, in any area which on that day falls within any of the successor States prior to November, 15, 2000 and on and from 15.11.2000 such persons shall continue to hold the same post or office in that successor State, in which the area falls and shall be deemed from Nov 15, 2000 as duly appointed to the office by appropriate authority in that successor State under which the post and office falls. Thus, the said provision clearly emphasizes that such persons who were provisionally or finally allocated to the successor State, or to which State the person is transferred is working, thereby the final authority for the said person by virtue of that Act, the person (appointing authority) could be the disciplinary authority for the purpose of the Act. Thus, after creation of the State of Jharkhand, a person who was provisionally allocated or finally allocated to the State of Jharkhand, the State of Bihar has no authority for issuing any order regarding their service conditions or any disciplinary order. 7. The said controversy has cropped up before this Court (DB) in the case of State of Bihar vs. Arvind Vijay Bilung, ( 2002(1) (JCR) 401 (Jhar) [ : 2002(1) JLJR 697 ], wherein the Division Bench has observed as under : "10. It will not be out of place at this stage to mention that Section 72 and 74 of the Act are in pari materia to section 82 and 83 of the Punjab Reorganisation Act, 1966. Section 74 is also in pari materia to section 116 of the States' Reorganisation Act, 1956, but Section 72 of the Act is materially and substantially different to Section 1160f the aforesaid 1956 Act because 1956 Act in Section 115 clearly stipulates and lays down that on and from the appointed day such Government servant who has been serving in the place which form the territory of the successor State should be deemed to have been allotted to and be, therefore, allowed to serve in connection with the affairs of the successor State to the existing State. 11. Once, therefore, it is held that on and from the appointed day, the successor State to the existing State would be the appointing authority in respect of a Government Servant and that the competent authority 'on and from that day, shall have all powers to pass any order in any respect against such person (including the order affecting his continuance in such post or office) permitting the existing State of Bihar, to either initiate disciplinary proceedings or issue suspension order against such person would be in violation of the express mandate contained in Section 74 of the Act and the proviso thereto. On and from the appointed day, the "existing State of Bihar" as defined in Section 2(e) ceased to exists. On and from the appointed day, the "existing State of Bihar" as defined in Section 2(e) ceased to exists. On and from the appointed day, the successor States to the existing State of Bihar came into being. These successor States were the State of Bihar and the State of Jharkhand. By a reading of Section 74, therefore, what emerges is that the appointing authority in respect of a Government servant would be one of the two successor States, the State of Bihar or the State of Jharkhand and to determine as to which one of these two successor States is the appointing authority, the test is very-very simple. If the employee, as on the appointed day is serving in and posted at a territory forming part of the successor State of Bihar, the State of Bihar would be the appointing authority. If the employee is posted in and serviJ1g at a territory forming part of the State of Jharkhand, the State of Jharkhand would be the appointing authority. It is only the competent authority in the successor State which has the power and jurisdiction to initiate action and pass orders. This is irrespective of the accrual of cause of action at any point of time before the appointed day or the place where such cause of action occurred. To elucidate, we may say that if as on the appointed day, a person was serving in and posted at a place which formed part of the territory of the State of Jharkhand and if with respect to such a person cause of action had occurred, say in the year 1998 or 1999, in a place which, as on the appointed day, formed part of the State of Bihar, the State of Jharkhand alone shall be the competent authority and only such competent authority can pass order with respect to such a per. son. The State of Bihar with respect to such a person would have no jurisdiction to initiate action or pass an order. 12. In such a situation and in such a background, where the State is carved out of an existing State, the co-operation between the two States becomes meaningful. son. The State of Bihar with respect to such a person would have no jurisdiction to initiate action or pass an order. 12. In such a situation and in such a background, where the State is carved out of an existing State, the co-operation between the two States becomes meaningful. If, therefore, the State of Bihar has, in its possession, any material against a Government servant who, by, virtue of Section 74 of the Act, is new in the service of the State of Jharkhand and if the State of Bihar thinks that such material warrants initiation of an action against such a person, it is open to the State of Bihar to forward such material to the State of Jharkhand for such action as it considered appropriate by the State of Jharkhand, Let it be very clearly understood that only role of the erstwhile State in' such a situation is merely to pass on the information or the relevant material to the State of Jharkhand and leaving the rest for the State of Jharkhand to do. Similarly would be the case for the State of Jharkhand if an employee is in a place in Bihar and if the State of Jharkhand has any material in its possession which may be required to be forwarded to the State of Bihar for appropriate action against such an employee." 8 In view of the above, the impugned order passed by the officer of the State of Bihar is without jurisdiction. As a matter of fact, if any document or any matter was pending before the State of Bihar against the petitioner, those materials available against the said officer should have been submitted to the State of Jharkhand which was competent to take a decision in that regard. 9 In view of the above, this writ petition is allowed. The impugned order is set aside. However, it is directed that if the State of Bihar feels necessary to submit the relevant papers to the State of Jharkhand, then that could be submitted to the State of Jharkhand and the State of Jharkhand will take its own decision in accordance with law. No order as to costs.