Research › Search › Judgment

Jharkhand High Court · body

2011 DIGILAW 679 (JHR)

Bhadey Munda v. State of Jharkhand through

2011-07-15

POONAM SRIVASTAV

body2011
JUDGMENT Heard respective counsel appearing on behalf of the petitioners and respondents. Counter and rejoinder affidavits have been exchanged. The writ petition is being decided finally. 2. The petitioners have made a number of prayers in the instant writ petition, but counsel appearing on behalf of the petitioners has confined his argument to prayer no. (iii), which reads thus:- "for issuance of further appropriate writ(s)/order(s)/direction(s) including the writ of mandamus from this Hon'ble Court directing the respondents not to alter/vary the service conditions of the petitioners which existed immediately before the appointed day to their disadvantage, as the same is violative of the provisions of Section 73 of the Bihar Reorganization Act, 2000." 3. Petitioner No. 1 as well as petitioner no. 2 both were working on the post of Functional Manager under the Department of Industries of the erstwhile State of Bihar. Petitioner No. 1 has joined the post on 1.6.1990 and petitioner no. 2 has joined the post of Functional Manager on 1st August, 1990. The claim of the petitioners alongwith few others for promotion to then post of General Managers/ Deputy Directors of Industries accrued while bifurcation of the State of Jharkhand and Bihar had not taken place. Since promotion of the present two petitioners alongwith few others was not being considered by the then State of Bihar, a writ petition was preferred vide C.W.J.C. No. 115 of 2004. The writ petition was decided finally all 30th April, 2004 with an observation that approval from the Cabinet Secretariat was awaited right from 1999 and the matter was being delayed on one pretext or the other. Finally the writ petition was disposed of with direction to the State Government to take a final decision pertaining to promotion of the petitioners within a period of three months from the date of receipt/production of a copy of the order. The petitioners continued to work in the combined cadre till May 2005 and it was only subsequent to the aforesaid date, cadre of the present petitioners was fixed as State of Jharkhand. 4. The grievance of the petitioners is that other claimants alongwith the petitioners in the State of Bihar have been granted promotion but the claim of the petitioners is still not complied with. 5. According to the contesting respondents' counsel the claim is pending consideration. 4. The grievance of the petitioners is that other claimants alongwith the petitioners in the State of Bihar have been granted promotion but the claim of the petitioners is still not complied with. 5. According to the contesting respondents' counsel the claim is pending consideration. State Counsel submits that a gradation list has been prepared and objections have been invited and the Government is going to take a decision shortly. 6. This contention of the State has been disputed by the petitioners. The gradation list is prepared and is under challenged by a number of other petitioners. 7. The argument in the circumstances advanced on behalf of the petitioners is that proviso to Section 73 of the Bihar Reorganization Act, 2000 states "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. 8. In the circumstance, the emphatic argument is that since the petitioners were working with combined State of Bihar and Jharkhand previously and on the appointed day they continued in the State of Bihar, but their cadre was fixed only in the year 2005 when they had already perfected their right for promotion, they should not be subjected to any disadvantage as provided by Section 73 of the Bihar Reorganization Act, 2000. 9. Learned counsel has also placed reliance on a number of decisions to lay emphasis on his submission that since valuable right had accrued to them while their cadre was not fixed and, therefore, such right cannot be taken away only because they have been allocated Jharkhand Cadre. In the case of Shyam Bahadur Sinha vs. State of Jharkhand and Others, (2008)1 JLJR 154 . Paragraph 5 of the said judgment is being reproduced herein below:- "Mr. R. Mukhopadhyay, learned counsel, appearing on behalf of the petitioners, submitted that the Government of Jharkhand after creation of the new State, cannot take away any right, which has been vested in the employee on the plea of bifurcation of the State. Learned counsel submitted that the impugned order, depriving the petitioners of their vested right, is arbitrary and wholly without jurisdiction. Learned counsel submitted that the impugned order, depriving the petitioners of their vested right, is arbitrary and wholly without jurisdiction. Learned counsel further submitted that in similar case, Raj Mani Tiwari vs. State of Jharkhand and Ors., 2007 (3) JLJR 514 , this Court has held that though the Government is empowered to take fresh policy decision, but the Government has no authority to take away or deprive the employee of any right already vested. A policy decision, which takes away the valuable right of the petitioners, cannot be implemented with retrospective effect. The impugned letter is also in the teeth of Section 73 of the Bihar Reorganization Act." 10. Another case relating to the benefits of an employee vis-a-vis Sections 72 and 73 of the Bihar Reorganisation Act is Sukhdeo Oraon and Lal Bahadur Mishra vs. State of Jharkhand, (2005)4 JLJR 292 and the third case is Tapeshwar Choudhary vs. State of Jharkhand, (2011)2 JLJR 149 have been cited in support of petitioners' contention. 11. In all the three cases a similar question arose for consideration and the claim, which had accrued to the petitioners before allocation of cadre, was directed to continue with the concerned employer as nothing can be done by the allocated State to the detriment of the concerned officers. There were seven such officers, who were working as Functional Managers in Bihar and claimed their promotion to the higher post and preferred writ petitions. After the petitions were allowed, they continued as Functional Managers till the date of fixation of cadre. The other four officers, who continued to be in Bihar, have already been granted promotion pursuant to the order of writ petition and consequent decision taken by the Bihar Government. The petitioners, who joined Jharkhand Cadre in the month of May 2005, were not granted promotion, since their Bihar Cadre ceased to exist. 12. In the facts and circumstances, the contention of the learned counsel appears to be fully justified and the decisions relied upon are squarely applicable to the facts of the present case. Evidently, provisions of Section 73 of the Bihar Reorganization Act, 2000 stipulates that the conditions of service applicable immediately before the appointed day in the case of any officer, who has been allocated either State of Bihar or State of Jharkhand shall not be varied to his disadvantage. The petitioners are therefore cannot be deprived of their rightful claim. Evidently, provisions of Section 73 of the Bihar Reorganization Act, 2000 stipulates that the conditions of service applicable immediately before the appointed day in the case of any officer, who has been allocated either State of Bihar or State of Jharkhand shall not be varied to his disadvantage. The petitioners are therefore cannot be deprived of their rightful claim. 13. In the circumstance, I dispose of the writ petition with a direction that the concerned authority shall look into the matter and pass an order in confirmation with the conditions that had accrued on the date their cadre was fixed within a period of six weeks from the date a certified copy of this order is produced before him. It is made clear that the petitioners cannot be discriminated with their counterparts who were allocated Bihar Cadre. 14. Writ petition is, accordingly, disposed of. 15. It is made clear that the State Government shall not fail to pass an appropriate order in confirmation with this decision to subject the petitioners any further disadvantage.