In the High Court of Jharkhand at Ranchi
W.P. (S) No.4938 of 2010
Tapeshwar Choudhary .......... ......... Petitioner
VERSUS
State of Jharkhand and others .......... ......... Respondents
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CORAM: HONBLE MR. JUSTICE R.R. PRASAD
For the Petitioner: Mr. M.S. Anwar, Sr. Advocate
For the State : Mr. D.K. Dubey, G.P.-I
Reserved on 12/01/2011 Delivered on 25/02/2011
25.02.2011
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 to 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.
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.
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.
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 Re-organization 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 Annexure-6, 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.
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.
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. 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.
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.
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.
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?
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- (I) 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 sub-section (2) to a successor State shall, if he is not
already serving therein 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. 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”.
Thus, the provisions as contained in Section 73 of the Act does
stipulates 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.
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.
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.
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.
In the result, this application is allowed.
( R.R. Prasad, J.)
ND/