Patna High Court
Case Details
Patna High Court CWJC No.14418 of 2011 (8) dt.10-12-2013 1 IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.14418 of 2011 ====================================================== Md.Sarfarazul Haque son of late Md. Asharfuddin resident of Mohalla- Rampur Bhikhari Nilam Pani Tanki Road, Munger P.S. and District Munger Versus .... .... Petitioner/s 1.The Union Of India through the Secretary, Department of Home, New Delhi 2.The State of Bihar through the Principal Secretary, Department of Personnel and Administrative Reforms (Now General Administration), Government of Bihar, Patna 3. The Secretary, Home (Police), Bihar, Patna 4. The Secretary, Home (Special), Bihar, Patna 5. The Director General of Police, Bihar, Patna 6. The Deputy Inspector General (Provision), Bihar, Patna 7. The Inspector General of Police, Bhagalpur Zone, Bhagalpur 8. The State of Jharkhand through the Director General of Police, Ranchi .... .... Respondent/s ====================================================== Appearance : For the Petitioner/s : Mr. Janardan Prasad Singh For the Respondent/s : Mr. Sanjay Kr No.2 Ga5 ====================================================== CORAM: HONOURABLE MR. JUSTICE SAMARENDRA PRATAP SINGH ORAL ORDER 8 10-12-2013 The petitioner has challenged the order dated 3.2.2011 issued by the D.I.G. (Provision), respondent no.6, communicating the decision of the Central government dated 12.10.2010 allocating him Jharkhand cadre. The petitioner has
Legal Reasoning
also challenged the subsequent order dated 8.7.2011 issued by the Secretary Home (Special), respondent no.3 rejecting the representation of the petitioner pursuant to liberty granted him vide C.W.J.C.No.3880 of 2011. It appears that during the pedency of this writ application, the petitioner filed I.A.No.8095 of 2013 and this Court by order Patna High Court CWJC No.14418 of 2011 (8) dt.10-12-2013 2 dated 21.11.2013 allowed him to challenge the substantive order dated 12.10.2010 of the Central Government allocating him Jharkhand cadre. Before I take up the grounds for challenge it would be necessary to notice the facts of the case in brief. The petitioner was appointed on 6.7.1989 on the post of Typist in the Secretariat Cadre in the State of Bihar. He was confirmed on the said post on 6.7.1992. The petitioner was working on the post of Typist on the date of Re-organization of the State e.g. 15.12.2000. The Department of Personnel and Administrative Reforms by notification no.6216 dated 29.6.2006 amalgamated all the posts of Typist, Routine Clerk and Bill Clerks into Upper Division Clerk and as such all the persons working on the above mentioned posts were designated as Upper Division Clerk. The name of the petitioner was included in the general gradation list at Sl. No.457. The petitioner subsequently got higher pay scale under the A.C.P. Scheme in view of circular no.432 dated 9.2.2009 of the Department of Personnel and Administrative
Legal Reasoning
Reforms. The petitioner continued to work as Upper Division Clerk in Secretariat cadre. In the meantime in the year 2011 the respondent no.6 vide its order dated 3.2011 relieved the petitioner for giving joining in the State of Jharkhand in Typist Patna High Court CWJC No.14418 of 2011 (8) dt.10-12-2013 3 Cadre in view of allocation of Jharkhand Cadre by the Central Government on 12.10.2010. The order dated 3.2.2011 was challenged in C.W.J.C.
Decision
No.3880 of 2011. The writ application was disposed of by order dated 28.4.2011 to file a representation before the Secretary, Department of Home (Special) Patna who would consider the same in accordance with law. In terms of the order dated 28.4.2011, the petitioner filed a detailed representation on 18.2.2011 contained in Annexure-5. In the said representation the petitioner reiterated his option for State of Bihar. The Secretary, Home Special vide order dated 8.7.2011 rejected the representation of the petitioner on the ground that the cut off date for determining the post one was occupying for allocation of cadre would be 15.11.2000, the date of Re-organization of the two States under Bihar Re-organization Act, 2000. The petitioner has assailed the impugned order on different grounds which I would be considering one by one. The petitioner contends that if a government employee is not transferred within a year of the cut off date i.e. 15.11.2000, he cannot be subsequently allocated the State different to his choice. In support of his submission, the petitioner has relied upon section 72(1) of the Bihar Re-organization Act, 2000 as Patna High Court CWJC No.14418 of 2011 (8) dt.10-12-2013 4 well as paragraphs 7 and 8 of the decision in case of Braj Kishore Paswan vs State of Bihar & Ors, reported in 2004(2) PLJR 406. In my view, the contention of the petitioner that if an employee is not transferred provisionally within a year of the cut off date i.e. 15.11.2000, he cannot be transferred subsequently is fallacious. Section 72 of the Bihar Reorganization Act, 2000 relates to services in Bihar and Jharkhand. The section merely makes provision with respect to provisional allocation of cadre by the respective Governments till finalization of cadre by the Central Government. Section 72 confers power on the Central Government to pass a final order with respect to cadre allocation. The provision no where fetter the power of the Central Government to decide the cadre even where a person has not been allocated any particular cadre provisionally within a year. Section 76 enjoins upon the State Government to comply with the direction of the Central Government for purposes of giving effect to the Act. Further more, the case of Braj Kishore Paswan (supra) would not be of any help to the case of the petitioner as the Government counsel in that case conceded that the said petitioner could have been sent to the Home Department of the State of Bihar itself, instead of repatriating him to a place in the State of Jharkhand. Thus, I find that the decision in the Patna High Court CWJC No.14418 of 2011 (8) dt.10-12-2013 5 said case is based on mere on concession than on the decision with respect to adjudication of cadre. The petitioner next contended that on the date of cadre allocation he was not a Typist as vide notification dated 29.6.2006 contained in memo no.6216 of Personnel and Administrative Reforms Department, the posts of Typist, Routine Clerk and Bill Clerk were amalgamated as Upper Division Clerk. The petitioner states that both the Central Government and the State Government has erred in allocating Jharkhand Cadre to him on the premises that he still belonged to Typist cadre. The cadre allocation is necessarily to be done on the basis of the rank held by the person on the cut off date i.e. 15.11.2000 and not on the date on which the cadre is finally allocated, otherwise it would lead to chaos and anomalous situations. The decision relating to cadre allocation by Central Government is generally time taking as in turn it has to await the recommendation of the Advisory Committee. If the contention of the petitioner is to be accepted then there would be different cut off date for different employees depending upon the date of order of cadre allocation as there could be a possibility that one may get promoted or demoted or even terminated in the Patna High Court CWJC No.14418 of 2011 (8) dt.10-12-2013 6 meanwhile. Further more, the date 15.11.2000 cannot be said to be arbitrary or without rationale for determining cadre allocation, as it is the date when the two States were reorganized. Thus I do not find any infirmity in order of the Special Secretary Home that as per Bihar Reorganization Act, 2000 cadre allocation is done on the basis of post that an employee held on the cut off date. Unfortunately, on account of non- representation on behalf of the Union Government, no light has been thrown on the aforesaid aspect of the Central Government. From bare perusal of the provision as well as very intent and object of the Act, it is evident that the cadre allocation has rightly been done on the basis of the post one held on the date of Re-organization of State e.g. 15.11.2000. The petitioner admittedly was holding the post of Typist on 15.11.2000, thus his cadre division was rightly done treating him as Typist on the cut off date. The petitioner next contended that the Advisory Committee established under section 75 of the Bihar Reorganization Act has formulated certain guidelines for making recommendation to the Central Government for allocation of cadre. The petitioner states that he never served in the State of Patna High Court CWJC No.14418 of 2011 (8) dt.10-12-2013 7 Jharkhand or even his place of residence is in the bordering area of the State of Jharkhand and as such he should have been favourably considered for allocation of Bihar Cadre. I find that earlier on the recommendation of the Advisory Committee, the Central Government allocated him Bihar Cadre in the year 2010. Subsequently, on remand by this Court, the Secretary Home Special did not find ground for allocation of Bihar Cadre to him. The petitioner states that the impugned order allocating him Jharkhand cadre seeks to transfer him on the post of Typist on Typist cadre. Though the cadre allocation is to be done on the basis of the post the incumbent is occupying on the cut off date, nonetheless if in the meantime one is promoted or elevated to a higher post prior to allocation order, then upon allocation to the State of Jharkhand or vice-versa one would go lock, stock and barrel with the same status and pay. The petitioner has rightly relied upon a decision in the case of Chhathoo Lal Vs Union of India & Ors, reported in 2001(3) PLJR 67. The petitioner lastly submits that he has almost completed 56 years of age and has only 4 years to go prior to his retirement and at the fag end of his carrier he may not be relegated to a State where he has never served nor have any establishment. Patna High Court CWJC No.14418 of 2011 (8) dt.10-12-2013 8 Further more, he was not junior most amongst in the Typist cadre on the cut off date and as such ought not to have been sent to Jharkhand. In my view if the petitioner files a fresh representation before the Central Government with all relevant details, the same would be disposed of within three months from the date of its filing without prejudice. With the aforesaid observations and directions, this writ application stands dispose of. KHAN/- (Samarendra Pratap Singh, J)