Judgment:
1 IN THE HIGH COURT OF JHARKHAND AT RANCHI. W.P. (S) No. 1540 of 2008 … Mahabir Prasad son of Late B.P. Yadav, resident of Hari Om Towers, Flat No. A-201, Circular Road, P.O. & P.S. Lalpur Ranchi, District Ranchi. … … Petitioner -V e r s u s- 1. State of Jharkhand 2.Deputy Secretary, Department of Personnel, Administrative Reforms and Rajbhasha, Government of Jharkhand, Ranchi; 3.State of Bihar 4.Additional Secretary, Personnel and Administrative Reforms Department, Government of Bihar, Patna; 5.Secretary, Human Resources Development Department, Government of Bihar, Patna; 6.Director, Secondary Education, Human Resources Development Department, Government of Bihar, Patna; 7.Bihar School Examination Board, Patna through its Chairman/Secretary, Budha Marg, Patna, P.O. Patna, District Patna. … Respondents … CORAM: - HON’BLE MR. JUSTICE PRAMATH PATNAIK. … For the Petitioner : - Mr. Afaque Ahmed, Advocate. For the Respondent nos. 1 and 2 :- Mr. Kaustav Roy, J.C. to Sr. S.C. III For the Respondent Nos. 4 and 7 :- Mr. S.P. Roy, G.A. (Bihar) and Mr. Pankaj Kumar, J.C. to G.A. (Bihar) … 06/10.07.2017 In the accompanied writ application, the petitioner calls in question the legality and propriety of the forwarding letter dated 07.12.2007 (Annexure-4) from the Deputy Secretary, Department of Personnel, Administrative Reforms and Rajbhasha, Government of Jharkhand, Ranchi (Respondent No.
2) whereby a copy of the letter dated 29th October, 2007 (Annexure-5) has been forwarded to the the petitioner from the Additional Secretary, Personnel and Administrative Reforms Department, Government of Bihar, Patna (Respondent No.
4) with a direction to refund the amount of honorarium/special remuneration received by the petitioner within fifteen days on the ground that after creation of the State of Jharkhand, the impugned order is not sustainable in view of the decision rendered by this Court in the case of State of Bihar-versus-Arvind Vijay Bilung & Another reported in 2002 (1) J.L.J.R.
697. 2. Heard Mr. Afaque Ahmed, learned counsel for the petitioner and Mr. Kaustav Roy, learned J.C. to Sr. S.C. III appearing for the Respondent nos. 1 2 and 2 as well as Mr. Pankaj Kumar, learned J.C. to G.A. (Bihar) appearing for Respondent Nos. 4 and 7.
3. The brief facts, as disclosed in the writ application, is that initially, the petitioner was appointed on the post of Administrator, Bihar School Examination Board, Patna vide Annexure-1 to the writ application and continued on the said post from 07.05.1997 to 07.05.1998. Again the petitioner joined his assignment as the Administrator to the Board on 31.10.1998 and continued to work on that post till 13.06.2000. In view of the fact that the petitioner was posted as the Administrator of the Board, he was exercising all the powers of the Chairman of the Board. Para-71, Chapter-10 of the aforesaid Board Regulations envisages that the Chairman is authorized to sanction honorarium or other allowances to officers and other employees of the Board subject to the provisions in the Budget. The Education Department, Government of Bihar, Patna through its letter dated 02.12.1988 has provided/allowed the special remuneration to be paid twice in a year equivalent to one month's salary to the servants of the Board. The petitioner vide Annexure-3, dated 25.08.1997, before taking special remuneration informed the Secretary of the Secondary, Primary and Adult Education Department, Government of Bihar regarding receiving of the special remuneration. No information/guidelines was received from the authorities of the State Government in this regard and the petitioner was allowed honorarium/special remuneration, as allowed to other servants of the Board. The petitioner retired on attaining the age of superannuation on 30.06.2007 from the State of Jharkhand. Vide Annexure-4, dated 07.12.2007, the petitioner received a forwarding letter and vide Anneuxre-5 dated 29.10.2007, the petitioner was directed to refund the amount of honorarium/special remuneration received by him within 15 days.
4. Mr. Afaque Ahmed, learned counsel for the petitioner submits that the impugned orders have been passed without issuance of the show cause notice, which is in breach of the principles of natural justice. Learned counsel for the petitioner further submits that the impugned orders vide Annexure-4 and 5 are not legally sustainable in view of the decision rendered in the case of Arvind Vijay Bilung & Another (Supra) and 3 therefore, being a nullity in the eye of law are liable to be quashed.
5. A counter affidavit has been filed on behalf of the Respondent Nos. 4 and 7-State of Bihar, controverting the averments made in the writ application.
6. Mr. Pankaj Kumar, learned J.C. to G.A. (Bihar) appearing for the Respondent-State of Bihar has reiterated the submissions made in the counter affidavit and submits that the writ petition is not maintainable on the ground that without approaching to the concerned Department, the petitioner has preferred the present writ petition. Learned counsel for the Respondent- State of Bihar further submits that there is no provision under which honorarium can be accepted by the officer without prior permission of the Government. The opinion of the Government of India and the Finance Department, Government of Bihar was obtained in the matter and the Government of India, Ministry of Personnel, P.G. and Pension, DOPT vide its letter dated-21.02.2007 has opined that there is no specific provision in the IAS (Pay) Rules, 1954 for payment of the honorarium to the IAS Officer. The Finance Department, Government of Bihar also referred to Rule 137 of the Bihar Service Code in this regard, as evident from Annexure-A and B to the counter affidavit. Learned counsel for the Respondent-State of Bihar defended the action of the State Government of Bihar, so far as Annexure-4 is concerned. However, learned counsel for the Respondent-State of Bihar does not dispute the proposition of law laid down by the Division Bench of this Court in the case of Arvind Vijay Bilung & Another (Supra).
7. Mr. Kaustav Roy, learned J.C. to Sr. S.C. III appearing for the Respondent nos. 1 and 2 submits that the Respondent-State of Jharkhand has nothing to comment so far as the impugned order vide Annexures-4 and 5 are concerned.
8. Having heard the learned counsel for the respective parties and in view of the proposition of law laid down by the Division Bench of this Court in the case of Arvind Vijay Bilung & Another (Supra), I am of the considered view that the petitioner has been able to make out a case for interference due to the following facts, reasons and judicial 4 pronouncements :- (i) So far as the impugned order vide Annexure-4 to the writ petition is concerned, it appears that after retirement of the petitioner on 30.06.2007 after creation of the State of Jharkhand, the State of Bihar is denuded of jurisdiction to pass any order. Therefore, the impugned order is not sustainable in view of the decisions rendered in the case of State of Bihar-versus-Arvind Vijay Bilung & Another reported in 2002 (1) J.L.J.R. 697, wherein, the Division Bench of this Court in a similar issue observed as under: -
“12. In such a situation and in such a background, where the State is carved out of an existing State, the cooperation 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 now 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. Similar 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.” (ii) So far as the merit of the matter is concerned, admittedly, the impugned forwarding letter dated 07.12.2007 (Annexure-4) from the Deputy Secretary, Department of Personnel, Administrative Reforms and Rajbhasha, Government of Jharkhand, Ranchi (Respondent No.
2) whereby a copy of the letter dated 29th October, 2007 (Annexure-5) has been forwarded to the the petitioner from the Additional Secretary, Personnel and Administrative Reforms Department, Government of Bihar, Patna (Respondent No.
4) with a direction to refund the amount of honorarium/special remuneration received by the petitioner within fifteen days. It has been submitted in the writ application that the petitioner remained posted as Administrator of the Board and received the amount of honorarium/special remuneration through cheques 5 amounting to Rs.92,995/- and after receiving the aforesaid amount, the petitioner has paid 30 per cent of the aforesaid amount towards Income Tax. The submission of the petitioner has not been controverted by the respondents in the counter affidavit and therefore, the averment of the petitioner goes un-challenged on the ground of doctrine of non- traverse.
9. In view of the reasons stated in the foregoing paragraphs and as a logical sequitor, the impugned forwarding letter dated 07.12.2007 (Annexure-4) from the Deputy Secretary, Department of Personnel, Administrative Reforms and Rajbhasha, Government of Jharkhand, Ranchi (Respondent No.
2) whereby a copy of the letter dated 29th October, 2007 (Annexure-5) has been forwarded to the the petitioner from the Additional Secretary, Personnel and Administrative Reforms Department, Government of Bihar, Patna (Respondent No.
4) with a direction to refund the amount of honorarium/special remuneration received by the petitioner within fifteen days, being not legally sustainable are hereby quashed and set aside. Accordingly, the writ petition stands allowed. (Pramath Patnaik, J.) APK