{"id":144666,"date":"2011-02-25T00:00:00","date_gmt":"2011-02-24T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/tapeshwar-choudhary-vs-state-of-jharkhand-ors-on-25-february-2011"},"modified":"2018-01-16T13:12:26","modified_gmt":"2018-01-16T07:42:26","slug":"tapeshwar-choudhary-vs-state-of-jharkhand-ors-on-25-february-2011","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/tapeshwar-choudhary-vs-state-of-jharkhand-ors-on-25-february-2011","title":{"rendered":"Tapeshwar Choudhary vs State Of Jharkhand &amp; Ors on 25 February, 2011"},"content":{"rendered":"<div class=\"docsource_main\">Jharkhand High Court<\/div>\n<div class=\"doc_title\">Tapeshwar Choudhary vs State Of Jharkhand &amp; Ors on 25 February, 2011<\/div>\n<pre>           In the High Court of Jharkhand at Ranchi\n                    W.P. (S) No.4938 of 2010\n        Tapeshwar Choudhary             ..........        .........   Petitioner\n                             VERSUS\n        State of Jharkhand and others ..........          .........   Respondents\n                             ------\n        CORAM: HONBLE MR. JUSTICE R.R. PRASAD\n\n        For the Petitioner: Mr. M.S. Anwar, Sr. Advocate\n        For the State      : Mr. D.K. Dubey, G.P.-I\n\n\n        Reserved on 12\/01\/2011                       Delivered on 25\/02\/2011\n\n\n25.02.2011<\/pre>\n<p>        Learned counsel appearing for the petitioner submits that the<br \/>\npetitioner was appointed as Junior Engineer in the State of Bihar on 30.4.1983.<br \/>\nIn spite of rendering services to the satisfaction of the authorities, when the<br \/>\npetitioner was not promoted to the higher post, he moved an application before<br \/>\nthis Court, vide W.P.(C)No.3538 of 2002 for a direction to the respondents-<br \/>\nauthority to consider the case of promotion of the petitioner. In that case, it was<br \/>\nplaced before this Court that a decision is to be taken by the State of Bihar with<br \/>\nthe consent of the State of Jharkhand, as the cadre has not been bifurcated. The<br \/>\ncase was disposed of directing the Secretary, P.H.E.D, Government of Jharkhand<br \/>\nto take a decision on the request letter dated 13.2.2002 received from the<br \/>\nSecretary, P.H.E.D, Government of Bihar relating to promotion of the petitioner<br \/>\nand others.\n<\/p>\n<p>           Pursuant to that, concurrence was given by the State of Jharkhand<br \/>\nfor taking decision in the matter of promotion of the petitioner. Upon which<br \/>\nVigilance clearance was taken from the Bihar Public Service Commission and<br \/>\nonly on that basis, the petitioner was promoted to the post of Executive Engineer<br \/>\nvide Notification No. 9205 dated 11.12.2002 by the State of Bihar. Thereupon,<br \/>\nthe petitioner started discharging his duty on the promoted post in the territory<br \/>\nof State of Jharkhand but all on a sudden, the respondents came with an order<br \/>\ndated 4.9.2010, as contained in Annexure-6, whereby the promotion given to the<br \/>\npetitioner earlier by the State of Bihar was cancelled on the ground that on the<br \/>\nappointed day i.e. 15.11.2000, quota, meant for Scheduled Castes to the extent<br \/>\nof 10%, was full and as such, no vacancy has been existing against the Scheduled<br \/>\nCaste category. The said order has been challenged to be bad.\n<\/p>\n<p>           Learned counsel further submits that from a Circular, issued by the<br \/>\nCentral Government, it is evident that the cadre Controlling Authority in respect<br \/>\nof officers provisionally posted in the State of Jharkhand would be the State of<br \/>\nBihar until final allocation is made and further the clarificatory order, as<br \/>\ncontained in Annexure-A to the counter affidavit filed on behalf of the<br \/>\nrespondent no. 2, stipulates that the State of Bihar is competent to take decision<br \/>\n in the matter of promotion to the extent of 60% of the total vacancy, which falls<br \/>\nto the share of the State of Bihar and thus, this clarificatory order fully<br \/>\nestablishes that the State of Bihar was the Competent Authority to take decision<br \/>\nin the matter of promotion after seeking consent from the State of Jharkhand<br \/>\nwhich had already been given by the State of Jharkhand and under that<br \/>\nsituation, it was not within the competence of the State of Jharkhand to<br \/>\nwithdraw that order under which promotion was given to the petitioner.\n<\/p>\n<p>           Learned counsel further submits that on other ground also, the order,<br \/>\nunder which promotion was given to the petitioner, cannot be cancelled or<br \/>\nwithdrawn in view of the provision, as contained in proviso to Section 73 of the<br \/>\nBihar Re-organization Act, 2000, stipulating therein that the service conditions<br \/>\nof the persons applicable immediately before the appointed day shall not be<br \/>\nvaried to their disadvantage except with the previous approval with the Central<br \/>\nGovernment and, therefore, the order, as has been passed under Annexure-6, is<br \/>\ncertainly disadvantageous to the interest of the petitioner and hence, the same<br \/>\ncannot be passed by the State of Jharkhand without having approval of the<br \/>\nCentral Government and on this count also, the impugned order is fit to be set<br \/>\naside.\n<\/p>\n<p>           As against this, Mr. D.K.Dubey, G.P.I submits that it is true that while<br \/>\nthe petitioner was serving in the State of Jharkhand, the State of Bihar on<br \/>\naccount of non-division of the cadre took a decision to promote the petitioner to<br \/>\nthe post of Assistant Engineer but that promotion was provisional and it was<br \/>\nsubject to certain conditions stipulated in a letter bearing No. 1079 dated<br \/>\n28.2.2004 issued by the Personnel and Administrative Reforms. However, copy<br \/>\nof the same was never filed.\n<\/p>\n<p>           He would further submit that by the time decision was taken by the<br \/>\nstate of Bihar relating to the promotion of the petitioner, the Jharkhand<br \/>\nReservation Act was promulgated, vide Notification No.3465 dated 3.12.2001<br \/>\nwhereby only 10% post has been earmarked for promotion to the category of<br \/>\nScheduled Caste. In this respect, it was further pointed out that altogether 132<br \/>\nposts of Assistant Engineers were earmarked for the State of Jharkhand. Out of<br \/>\nwhich, as per the rule, 28% of the post, i.e. 37 posts are to be filled up from the<br \/>\nquota of Junior Engineer and of it 10% posts, i.e. 4 posts are to be filled up from<br \/>\nJunior Engineers belonging to Scheduled Caste category.\n<\/p>\n<p>           It was further pointed out that as against 4 posts meant for<br \/>\nScheduled Caste candidates, 9 persons of the same category were posted in the<br \/>\nState of Jharkhand, meaning thereby that 5 posts are in excess than the<br \/>\nadmissible quota fixed under clause 16 of the Jharkhand Reservation Act and<br \/>\nunder this situation, the order was passed whereby the petitioner was reverted<br \/>\nto the post of Junior Engineer and as such, no illegality has been committed.\n<\/p>\n<p>           Having heard learned counsel appearing for the parties, it does<br \/>\n appear that it has not been in dispute that this petitioner was provisionally<br \/>\npromoted to the post of Assistant Engineer by the State of Bihar in compliance<br \/>\nof the order passed by the Patna High Court and on getting recommendation by<br \/>\nthe Bihar Public Service Commission and also after having clearance from the<br \/>\nState of Jharkhand, vide order as contained in letter no. 9205 dated 12.11.2002.<br \/>\nAfter 8 years, the State of Jharkhand, vide its order as contained in memo<br \/>\nno.3650 dated 4.9.2010 (Annexure 6) has passed order of reversion to the post<br \/>\nof Junior Engineer on the ground which has been taken in the counter affidavit<br \/>\nand has been highlighted by the learned counsel appearing for the State in his<br \/>\nsubmission. It is also the stand of the State that the order of promotion was<br \/>\nqualified with certain conditions and was issued with a stipulation that such<br \/>\norder of promotion may get adversely affected due to final cadre division and in<br \/>\nthat event, the petitioner cannot put forth any claim. It would be better to point<br \/>\nit out those conditions which are being given herein below.\n<\/p>\n<p>              1. The promotion might be adversely affected due to final cadre<br \/>\n                 division and thereafter on determination of seniority.\n<\/p>\n<p>              2. In case of adverse effect on promotion concerned engineers<br \/>\n                 would not be entitled to any claim.\n<\/p>\n<p>           Thus, the question is as to whether the impugned order as contained<br \/>\nin Annexure 6 under which the petitioner was          reverted from the post of<br \/>\nAssistant Engineer to Junior Engineer is justified?\n<\/p>\n<p>           For deciding this issue, it would be relevant to refer the provision as<br \/>\ncontained in Sections 72 and 73 of the Bihar Reorganization Act.\n<\/p>\n<blockquote><p>                 &#8220;72. Provisions relating to services in Bihar and<br \/>\n                 Jharkhand- (I) Every person, who immediately before the<br \/>\n                 appointed day is serving in connection with the affairs of the<br \/>\n                 existing State of Bihar shall, on and from that day provisionally<br \/>\n                 continue to serve in connection with the affairs of the State of<br \/>\n                 Bihar unless he is required, by general or special order of the<br \/>\n                 Central Government to serve provisionally in connection with<br \/>\n                 the affairs of the State of Jharkhand:<\/p>\n<blockquote><p>                     Provided that no direction shall be issued under this section<br \/>\n                 after the expiry of a period of one year from the appointed day.\n<\/p><\/blockquote>\n<blockquote><p>                    1. As soon as may be after the appointed day, the Central<br \/>\n                       Government shall, by general or special order, determine<br \/>\n                       the successor State to which every person referred to in<br \/>\n                       sub-section (1) shall be finally allotted for service and the<br \/>\n                       date with effect from which such allotment shall take<br \/>\n                       effect or be deemed to have taken effect.\n<\/p><\/blockquote>\n<blockquote><p>                    2. Every person, who is finally allotted under the provisions<br \/>\n                       of sub-section (2) to a successor State shall, if he is not<br \/>\n                       already serving therein be made available for serving in<br \/>\n                       the successor State from such date as may be agreed<br \/>\n                       upon between the Governments concerned or in default<br \/>\n                       of such agreement, as may be determined by the Central<br \/>\n                       Government.\n<\/p><\/blockquote>\n<blockquote><p>                 73. Other provisions relating to services :- (I) Nothing in<br \/>\n                 Section 72 shall be deemed to affect on or after the appointed<br \/>\n                 day the operation of the provisions of Chapter I of Part XIV of<br \/>\n                 the Constitution in relation to determination of the conditions<br \/>\n                  of service of persons serving in connection with the affairs of<br \/>\n                 the Union or any State:\n<\/p><\/blockquote>\n<blockquote><p>                       Provided that     the conditions of service applicable<br \/>\n                 immediately before the appointed day in the case of any person<br \/>\n                 deemed to have been allocated to the State of Bihar or to the<br \/>\n                 State of Jharkhand under Section 72 shall not be varied to his<br \/>\n                 disadvantage except with the previous approval of the Central<br \/>\n                 Government.\n<\/p><\/blockquote>\n<blockquote><p>                 (2) All services prior to the appointed day rendered by a<br \/>\n                 person &#8211;\n<\/p><\/blockquote>\n<blockquote><p>                     (a) If he is deemed to have been allocated to any State<br \/>\n                        under Section 72, shall be deemed to have been rendered<br \/>\n                        in connection with the affairs of that State;\n<\/p><\/blockquote>\n<blockquote><p>                     (b) if he is deemed to have been allocated to the Union in<br \/>\n                       connection with the administration of the Jharkhand shall<br \/>\n                       be deemed to have been rendered in connection with the<br \/>\n                       affairs of the Union, for the purposes of the rules<br \/>\n                       regulating his conditions of service.\n<\/p><\/blockquote>\n<\/blockquote>\n<blockquote><p>                 (3) The provisions of Section 72, shall not apply in relation to<br \/>\n                 members of any All India Service&#8221;.<\/p><\/blockquote>\n<p>           Thus, the provisions as contained in Section 73 of the Act does<br \/>\nstipulates that the condition of service applicable immediately before the<br \/>\nappointed day in the case of any person deemed to have been allocated to the<br \/>\nState of Bihar or to the State of Jharkhand shall not be varied to his disadvantage<br \/>\nexcept with the previous approval of the Central Government.\n<\/p>\n<p>           It may be reiterated that the petitioner has been promoted by the<br \/>\nState of Bihar after getting recommendation of the Bihar Public Service<br \/>\nCommission, Vigilance clearance and also with the consent         of the State of<br \/>\nJharkhand and also keeping in view the vacancies against the sanctioned<br \/>\nstrength which would be evident from the letter dated 13.2.2002 issued by the<br \/>\nCommissioner and Secretary, P.H.E.D, Government of Bihar to the Secretary,<br \/>\nP.H.E.D, Government of Jharkhand (Annexure 13) but now the impugned order of<br \/>\nreversion has been passed by taking the stand that the sanctioned strength of<br \/>\nthe Assistant Engineer for the category of Scheduled Tribes is only 4 and as<br \/>\nagainst that, 9 persons have been posted and as such, continuation of the<br \/>\npetitioner on the post of Assistant Engineer is not permissible under Clause 16 of<br \/>\nthe Jharkhand Reservation Act.\n<\/p>\n<p>           It would be worthwhile to note here that before the appointed day,<br \/>\ni.e. 15.11.2000 the service condition of the petitioner was never governed by<br \/>\nsuch Act and as such, the provision of the said Act cannot be enforced in case of<br \/>\nthe petitioner in view of the embargo put under Section 73 of the Bihar<br \/>\nReorganization Act which does stipulate that service condition cannot be varied<br \/>\nto the disadvantage      except with the previous approval of the Central<br \/>\ngovernment. Admittedly, no such approval has been taken by the Central<br \/>\nGovernment before the order as contained in Annexure 6 was passed.\n<\/p>\n<p>            Under that situation, the authority by passing the order as contained<br \/>\nin Annexure 6 without the approval of the Central Government has certainly<br \/>\ncommitted gross illegality and hence, the order as contained in Annexure 6 is<br \/>\nhereby set aside.\n<\/p>\n<p>           In the result, this application is allowed.\n<\/p>\n<p>                                                         ( R.R. Prasad, J.)<\/p>\n<p>ND\/\n <\/p>\n","protected":false},"excerpt":{"rendered":"<p>Jharkhand High Court Tapeshwar Choudhary vs State Of Jharkhand &amp; Ors on 25 February, 2011 In the High Court of Jharkhand at Ranchi W.P. (S) No.4938 of 2010 Tapeshwar Choudhary &#8230;&#8230;&#8230;. &#8230;&#8230;&#8230; Petitioner VERSUS State of Jharkhand and others &#8230;&#8230;&#8230;. &#8230;&#8230;&#8230; Respondents &#8212;&#8212; CORAM: HONBLE MR. JUSTICE R.R. PRASAD For the Petitioner: Mr. M.S. Anwar, [&hellip;]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,18],"tags":[],"class_list":["post-144666","post","type-post","status-publish","format-standard","hentry","category-high-court","category-jharkhand-high-court"],"yoast_head":"<!-- This site is optimized with the Yoast SEO plugin v27.3 - https:\/\/yoast.com\/product\/yoast-seo-wordpress\/ -->\n<title>Tapeshwar Choudhary vs State Of Jharkhand &amp; Ors on 25 February, 2011 - Free Judgements of Supreme Court &amp; High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/tapeshwar-choudhary-vs-state-of-jharkhand-ors-on-25-february-2011\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Tapeshwar Choudhary vs State Of Jharkhand &amp; 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