ORDER
The Court
1. This case basically relates to the interpretation and the applicability of the provisions of law contained in Section 70 of the Bihar Reorganisation Act.
2000. When we talk of Section 70, X Schedule of the Act gets directly linked with any such interpretation or application of Section 70 because it is the “institutions” mentioned in the X Schedule of the Act which form the subject matter of Section 70 of the Act. Actually in this case, we are concerned with Sub-section (1) of Section 70 and not Sub-section (2) thereof. We are not concerned with Sub-section (2) on two grounds; firstly, because there is no prayer of any one that there is any need or warrant for inclusion of any new institution in the X Schedule, and secondly, in any event, the time for any such inclusion of any new institution stood expired on 1st December, 2001. After 1st December.
2001. Sub-section (2) has actually become otiose.
2. Section 70(1) of the Act talks of the continuance of the facilities (as heretobefore) to the people of the ‘other states’ with respect to the institutions mentioned in the Schedule. The continuance of such facilities has to be for such period and upon such terms and conditions as may be agreed upon between the States of Jharkhand and Bihar through an agreement which could be brought about
before 1.12.2001. The Sub-section further provides that if no such agreement is reached between the two State Governments, the continuance of the facilities for such period and upon such terms and conditions would be as might be fixed by an order to be passed by the Central Government.
3. On the issue of the agreement between the two Governments. Mr. M.M. Banerjee. Learned Advocate General drew our attention to the minutes of the meeting held on 19.12.2001 between Mr. J.N.R Sinha, Dr. Pradccp Kumar and Mr. Arvind Kuntar Chau-dhuri (Copy enclosed at page 15 of the affidavit filed by the Secretary Science and Technology, Jharkhand on 19.3.2002). We have no hesitation whatsoever in holding that these minutes did not or do not at all constitute any agreement between the Governments of Jharkhand and Bihar as is contemplated in terms of Section 70(1) of the Act.
4. All the Institutions in the X Schedule are located in the State of Jharkhand. The grievance of the petitioner is that in the absence of any arrangement having been finalized through the medium of any agreement that might have been entered into between the two State Governments or through the passing of an order by the Central Government, the people of the State of Jharkhand are suffering because unnecessarily and for an indefinite period, the facilities in terms of Section 70(1) of the Act are being provided to the people of Bihar, even though the intention behind Section 70(1) of the Act was to continue the provisions of such facilities for a fixed period Land on specific terms and conditions. The period was to be fixed and the terms and conditions were to be prescribed through a formal agreement between the two State Governments, and in absence of such an agreement, by the passing of an order by the Central Government.
5. Coupled with the aforesaid questions is the question relating to the definition of ‘domicile’ or ‘resident’ in so far as Jharkhand State is concerned.
The following facts/situations are admitted by all the parties :
(i) No agreement was reached between the Governments of Jharkhand and Bihar in terms of Section 70(1) of the Act with respect to the institutions covered by X Schedule.
(ii) The time for any such agreement (1.12.2001) has since expired and therefore that stage is now over the same having become infructuous by effluxe of time;
(iii) No order has been passed so far by the Central Government in terms of Section 70(1) of the Act;
(iv) No proposal so far has originated or emanated from the Government of Jharkhand addressed to the Central Government for passing of an order by the Central Government in terms of Section 70(1) of the Act;
(v) The facilities to the people of Bihar with respect to the institutions mentioned in the X Schedule continue to be provided on such terms which are not less favourable to them as have been before 15.11.2000.
(vi) So far the Government of Jharkhand has not formulated any policy nor has taken any decision with respect to defining the expressions ‘domicile’ or ‘resident’ or such like other expressions. In other words, the Government of Jharkhand has not so far taken any decision with respect to declaring, defining or prescribing as to on what basis, upon which parameters and link to which criteria would be considered ‘domicile’ or ‘resident’ of Jharkhand State; hence being entitled as such to the privileges and the facilities with respect to the institutions covered in the X Schedule which go alongwith the ‘domiciles’ or ‘residents’ in contra-distinction to such persons who are outsider as far as the State of Jharkhand is concerned.
6. Actually, we have no hesitation in saying that the declaration and the prescription of the expressions ‘domicile’ and ‘resident’ would in any way be a sine qua non to the applicability of Section 70(1) in so far as Jharkhand State is concerned with respect to the institutions mentioned in the X Schedule.
7. It is a matter of regret that the Government of Jharkhand, perhaps being totally oblivious to its obligations, responsibilities and the interests of its own people did not strive to arrive at any agreement before the cut-off date (1.12.2001) as was the legislative mandate in terms of Section 70(1) of the Act.
8. Was the State of Jharkhand totally indifferent and not concerned with the interests of its own people? It is also a matter of regret that so far the State has not come up with any policy or any decision relating to the expression ‘domicile’ or ‘resident’. Only because of this difficulty, a student who had applied for admission in the Rajendra Medical College. Ranchi and who was admittedly a resident of Jamshedpur in the State of Jharkhand was illegally denied admission on the untenable plea that she was not a domicile/resident or what they referred as a ‘native’ of the State of Jharkhand. Even the expression ‘native’ has not been defined anywhere. Denial of admission to this student led her to the filing of a petition under Article 226 of the Constitution of India in this Court, being W.P. (C) No. 450 of 2002. A learned Single Judge of this Court by his judgment dated 13.02.2002 allowed the aforesaid writ petition of the aforesaid petitioner and issued mandamus directing her admission in the medical college.
9. However, during the course of this judgment, the learned single Judge came to equate a ‘technical institution’ (and hence a medical college as a “institution” at par with those included in the X Schedule to the Act and therefore (sic) that medical colleges and other technical institutions be deemed to form part of the X Schedule. We do not agree with this view or the said finding of the learned Single Judge in the aforesaid case, because X Schedule to the Act is a definite part of a well defined provision of the 2000 Act. X Schedule contains a list of 30 institutions. No other institution, over and above these 30 institutions can be covered, included or deemed to be covered or included in the X Schedule. The only way by which any addl. institution could be included in the X Schedule was by invoking Sub-section (2) of Section 70 of the Act which means that only by an order of the Central Government, an addl. institution could be included in the X Schedule. That having not been done, the learned Single Judge was ‘not right in observing or holding that medical colleges would also be considered included in the X Schedule and therefore the analogy contained in Section 70(1) of the Act would become applicable to the medical college as well. Our disagreement with the aforesaid view of the learned Single Judge, however, should not at all be construed as any contrary expression of opinion by us with respect to the relief granted by the learned Single Judge to the writ petitioner in that case. We actually fully approve of the relief granted by the learned Single Judge to the writ petitioner in that case. Actually, only so far as the interpretation of Section 70 and the relevance and the applicability of the X Schedule is concerned, we have made the aforesaid observations.
10. The consequences of the aforesaid discussion, therefore, are that the Central Government is required to act in terms of Section 70(1) of the Act in issuing its order according to the mandate contained therein. The legislative intent is very clear, the legislative Intent is that the facilities to the people of other State cannot continue indefinitely. By fixing 1.12.2001 as the cut off date the Legislature had clearly intended that the two Governments, should enter into an agreement for fixing the period for which, upon certain terms and conditions, the facilities were to be granted. It therefore clearly meant that the Legislature intended the period and the terms and conditions to be fixed. The State Government having failed in its statutory duty to perform and in safeguarding and protecting the interests of the people of the State, now the ball is in the Court of the Central Government. Even though no period is prescribed as far as the Central Government is concerned for passing the order, it does not mean that passing of such an order by the Central Government, can wait an indefinitely long time. The mandate behind the legislative intent of Section 70(1) clearly suggests that this order should be passed without any unnecessary delay.
11. Before we finally dispose of this matter, we would like the Central Government through the Ministry of Home Affairs, to submit an affidavit in this Court indicating to this Court the response of the Central Government with respect to the passing of an order in terms of Section 70(1) of the Act. In order to enable the Central Government however, to communicate its response to us, and before it is done, it is imperative that the Government of Jharkhand itself first sends its proposal to the Central Government to enable the Central Government to act in terms of Section 70(1) of the Act. We therefore for the present, issue the hereinbelow contained directions :
1. The Government of Jharkhand within two weeks from today shall file an affidavit before us informing this Court as to what did it intend to do with respect to the passing of an order by the Central Government in terms of Section 70(1) of the Act and does it intend or doesn’t it intend to initiate the process for enabling the Central Government to pass such an order and if it does intend to initiate the process, in what manner and when?
2. Does it or does it not intend to take any steps with respect to the issues relating to ‘domicile’ or ‘resident’.
12. Only after we have the aforesaid response from the Government of Jharkhand, we shall pass appropriate order with respect to the performance of the statutory obligation in so far as the Central Government is concerned.
13. The learned Advocate General is directed to file the aforesaid affidavit on behalf of the State Government by the next date.
14. In this case the Union of India is required to be represented by the Secretary. Ministry of Home Affairs, and not by the Secretary Human Resources Development Department. Therefore, the cause title with respect to the Union of India shall be amended accordingly. Put up this case on 23.4.2002.
15. Let copies of this order be handed over to the counsel for the parties.