Radhey Shyam Pandey Vs. State of Jharkhand and ors. - Court Judgment

Excerpt:
- constitution of india. articles 12 & 226: [m. karpaga vinayagam, c.j., narendra nath tiwari & d.p.singh, jj] writ petition - maintainability - whether state co-operative milk producers federation ltd., is a state within meaning of article 12 ? - held, from perusal of relevant rules of byelaws, it is clear that state government has no role to play either in policy decision for raising funds for federation or its expenditure and thus have no financial control. further there is nothing to indicate that government has any functional and administrative control over federation. state government has no role to play in matter of appointment of any of officials of federation including managing director. federation is totally independent in all respects and in no way subservient to state.....ordern.n. tiwari, j.1. in both the writ applications a common question arises for consideration as to whether the state of bihar has got jurisdiction to pass the impugned order(s) of dismissal of the petitioner.2. both the writ applications are grounded on identical facts barring the development which gave rise to the cause for filing wp(s) no. 6309 of 2004 after filing the earlier writ application being wp(s) no. 2138 of 2003,3. the petitioner was an assistant engineer in the water resources department and he was put under suspension by order no. 127. dated 5.5.2000 (annexure-1) fixing his headquarters in the office of the chief engineer. water resources department. kanchi. alter the reorganization of the state of jharkhand under the provisions of bihar re-organisation act, 2000, a.....

Judgment:
ORDER

N.N. Tiwari, J.

1. In both the writ applications a common question arises for consideration as to whether the State of Bihar has got jurisdiction to pass the impugned order(s) of dismissal of the petitioner.

2. Both the writ applications are grounded on Identical facts barring the development which gave rise to the cause for filing WP(S) No. 6309 of 2004 after filing the earlier writ application being WP(S) No. 2138 of 2003,

3. The petitioner was an Assistant Engineer In the Water Resources Department and he was put under suspension by order No. 127. dated 5.5.2000 (Annexure-1) fixing his Headquarters in the Office of the Chief Engineer. Water Resources Department. Kanchi. Alter the reorganization of the State of Jharkhand under the provisions of Bihar Re-organisation Act, 2000, a tentative list of cadre allocation was made by the Cadre Allocation Committee. The petitioner's name appeared at Sl. No. 78 in the tentative list of Assistant Engineers of Water Resources Department for the State of Jharkhand vide letter No. 1422. dated 2.7.2002. The said tentative list was subsequently finalized and the petitioner was finally allocated Jharkhand Cadre in the final list issued by the Central Government. Earlier after the tentative allocation of the cadre, the State of Jharkhand had sought vigilance clearance and character report of the Assistant Engineer. Water Resources Department posted in Jharkhand by letter No. 6536, dated 17.12.2002 and the petitioner's name was shown as one of the Assistant Engineers of Water Resources Department of Jharkhand. Against the tentative cadre allocation of the petitioner, the State of Bihar had filed an objection before the Chairman. Advisory Committee requesting for deletion of the name of the petitioner from the tentative list of Jharkhand and to allocate Bihar, on the ground that the petitioner was earlier given punishment of dismissal by the said State. The same was turned down by the Central Government. Thereafter the said final allocation was made allotting the Jharkhand Cadre to the petitioner as contained in Notification No. 4728, dated 10.6.2003. The State of Bihar issued a Notification No. 401, dated 30.6.2004 under the signature of the Deputy Secretary, whereby the petitioner was sought to be again dismissed from his services by way of punishment, with retrospective effect from 29.3.2003. According to the petitioner, the entire departmental proceeding and the dismissal order passed against him as contained in Annexure-6, is wholly arbitrary, illegal and without jurisdiction as there was no territorial jurisdiction to the State of Bihar for passing the said order of dismissal against the petitioner who was an employee of the State of Jharkhand.

4. In WP(S) No. 2138 of 2003, the petitioner has prayed for quashing the Notification No. 482, dated 29.8.2003 whereby the petitioner was awarded punishment of dismissal from service from the date of issuance of the order by way of punishment in the departmental proceeding.

5. The grievance of the petitioner is that since the petitioner was an employee placed within the territory of Jharkhand on the appointed date and he had been allocated Jharkhand Cadre in the tentative list as well as in final list by the Central Government, who is the competent authority, the State of Bihar has got no territorial jurisdiction to issue the impugned order.

6. A counter-affidavit has been filed on behalf of the respondent Nos. 3 and 4, State of Bihar, stating, inter alia, that the petitioner was posted as Assistant Engineer (Mechanical) Sub-Division, Icha Chaliama, Jamshedpur during the period from May 1990 to January 1994 and there was serious allegation of irregularity against him. The petitioner was proceeded against departmentally on the charges and was put under suspension on 5.5.2000. The petitioner's headquarter was fixed in the office of the Chief Engineer, Water Resources Department, Ranchi. The petitioner's headquarter was subsequently changed to Water Ways Division, Gaya by order dated 15.2.2001. The petitioner was paid subsistence allowance from Gaya and as such for all purposes the petitioner shall be deemed to be an employee of the successor State of Bihar. The charges against the petitioner were inquired into in the departmental inquiry and were prima facie proved and subsequently, the impugned orders of dismissal(s) were issued by the concerned authorities of the State of Bihar. The Government of Bihar is the disciplinary State in the matter of the petitioner as he was in the cadre of Bihar State. The details of departmental proceedings and the materials against the petitioner have been also described in the counter-affidavit and on that basis the dismissal order has been supported as valid and justified.

7. A counter-affidavit has also been filed on behalf of the State of Jharkhand whereby the stand taken by the State of Bihar has been supported.

8. From the respective contentions, from the statements of the respective parties and materials placed on record, the following undisputed facts emerged :-

(i) The petitioner was put under suspension on 5.5.2000 fixing his headquarters in the office of the Chief Engineer, Water Resources Department, Ranchi;

(ii) The petitioner was allotted Jharkhand Cadre in the tentative list and the State of Bihar had filed objection against the same claiming the petitioner as an employee posted in State of Bihar on the appointed day and allocation of Bihar Cadre to him;

(iii) The said objection was not accepted and the petitioner was finally allotted Jharkhand Cadre by the Central Government who is the competent authority under the Bihar Re-organisation Act; vide order No. 5 (Jha)/04, dated 29.4.2004 in which the petitioner's name stands at Sl. 78;

(iv) The State of Jharkhand had, thereafter, sought vigilance clearance, character report of the Assistant Engineers of Water Resources Department posted in Jharkhand and the petitioner's name appeared at Sl. No. 111 of the list of those belonging to Jharkhand Cadre;

(v) In the order of final allocation, the Government of India by its letter dated 29.7.2004 directed that the person whose name finds place in the enclosed list who was since before 15.11.2000 working in connection with the affairs of the State of Bihar shall be deemed to have been allocated to the successor State of Jharkhand with effect from the appointed date;

(vi) Under the provisions of Section 72 of the Bihar Re-organisation Act, 2000, the Government of India is the final authority for allocating the cadre, it is the said statutory authority which had allocated Jharkhand Cadre to the petitioner which is effective from the appointed date, i.e., 15.11.2000;

(vii) In view of the said final allocation of Cadre by the competent authority, Government of India, who under the said Act is empowered to decide such matters, practically nothing remains to be decided by this Court;

(viii) The said final allocation has been made under the provisions of Section 72 of the Bihar Re-organisation Act after due consideration of the objections made by the State of Bihar;

(ix) The said decision of the competent authority has not been challenged by the respondents and as such the same is final and binding on the parties.

9. Section 72 of the Bihar Reorganization Act, 2000, which deals with the provisions relating to the services in the respective States after reorganization, reads thus :-

72. Provisions relating to services in Bihar and Jharkhand.-(1) 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.

(2) 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.

(3) 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.'

(emphasis is mine).

10. In view of the clear provision, as contained in Section 72 of the Bihar Re-organisation Act, and the facts and materials appearing in this case, including the final allotment of Jharkhand State Cadre to the petitioner, there is no scope for any other conclusion than to hold that the petitioner having been allotted the Cadre of the successor State of Jharkhand with effect from 15.11.2000, the authorities of the successor State of Bihar have no Jurisdiction to issue the Impugned Notification No. 482. dated 29.3.2003 as contained in Annexure-6 to the writ application WP(S) No. 2138 of 2003 as well as Notification No. 401, dated 30.6.2004 as contained in Annexure-5 to the writ application WP(S) No. 6309 of 2004 and the same are wholly without jurisdiction. <

11. Consequently the said impugned order(s) as contained in Annexure-6 to WP(S) No. 2138 of 2003 and Annexure-5 to WP(S) No. 6309 of 2004 are hereby quashed. Both the writ applications are allowed.

12. However, it will be open to the authorities of the State of Jharkhand to proceed against the petitioner in accordance with law, if it is so warranted In the circumstances of the case.

There shall be no order as to costs.