Jharkhand High Court
State Of Bihar vs Arvind Vijay Bilung And Anr. on 12 February, 2002
Equivalent citations: 2002 LAB. I. C. 2219, 2002 AIR - JHAR. H. C. R. 636, (2002) 1 JLJR 697, (2002) 1 JCR 401 (JHA)
Author: Vishnudeo Narayan
Bench: Vishnudeo Narayan
JUDGMENT
The Court
1. This appeal under Clause 10 of the Letters patent is directed against the judgment dated 7th August, 2001 by a learned Single Judge of this Court in a group of two writ applications (CWJC No. 2202 of 2001 and W.P.(s) 2692 of 2001 reported in 2001 (3) JCR 155) whereby the learned Single Judge by holding and declar-ing that the State of Bihar has no jurisdiction to take disciplinary action against the respondent-writ petitioners, has quashed and set aside the impugned order of suspension passed by the Government of Bihar, but by giving liberty to the State of Jharkhand to pass any appropriate order in accordance with law. if it so chooses.
2. The facts of the case lie in a very narrow compass. Both the respondent-petitioners after 15.11.2000 were admittedly posted in the territories which, from that date, form a part of the State of Jharkhand. Even though they were serving in such territories forming part of the State of Jharkhand, the State of Bihar passed order dated 20.5.2001 (In CWJC No. 2202 of 2001) and order dated 5.5.2001 (in WP(s) No. 2692 of 2001) whereby the writ petitioner- respondents in the aforesaid two writ petitions were suspended by the State of Bihar in contemplation of the initiation of departmental proceedings against them. On the ground of lack of jurisdiction and competency, the two writ petitioners challenged the aforesaid suspension orders passed by the State of Bihar in the aforesaid writ application and, as noticed at the very outset, the learned Single Judge, while allowing the writ applications and holding that the State of Bihar had no jurisdiction to pass such an order or to initiate the departmental proceedings, set aside and quashed the impugned suspension orders.
3. The Parliament has enacted Bihar Reorganisation Act. 2000. The preamble of the Act states that it was being enacted to provide for the re-organisation of the existing State of Bihar and for matters connected therewith. The "existing State of Bihar" has been defined in Section 2 of the Act to mean the State of Bihar as existisg immediately before the appointed day. "Appointed day" has been defined in Section 2(a) of the Act to mean the day which the Central Government may, by notification in the official gazette, appoint. It is an undisputed fact that 15.11.2000 was the day appointed by the Central Government in terms of the aforesaid provision and it is on this day, by virtue of Section 3 of the Act that the new State of Jharkhand (comprising the territories mentioned in that section) came into existence. As is well known, the new State of Jharkhand which was formed on and from the 'appointed day' (15.11.2000) was carved out of the existing State of Bihar. Section 4 of the Act, therefore, consequentially stipulated that on and from the appointed day the State of Bihar shall comprise of the territories of the existing State of Bihar minus the territories which would now form part of the new State of Jharkhand.
4. Part-VIII of the Act deals with matters relating to Services. Section 71 contains provisions regarding the All India Services with which we are not concerned in this Case. Admittedly, both the writ petitioners do not belong to any All India Service. In this case, we are concerned with Sections 72 and 74 of the Act. These two Sections read 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 con nection 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 Government concerned or in default in such agreement, as may be determined by the Central Government."
74. Provisions as to continuance of officers in same post.--Every person who, immediately before the appointed day is holding or discharging the duties of any post or office in connection with the affairs of the existing State of Bihar in any area which on that day falls within any of the successor States shall continue to hold the same post or office in that successor State; and shall be deemed, on and from that day, to have been duly appointed to the post or office by the Government of, or any other appropriate authority in, that successor State."
"Successor State" has been defined in Section 2(j) of the Act which reads thus :
"Successor State in relation to the existing State of Bihar, means the State of Bihar or Jharkhand."
5. Apparently, one may be tempted to say that there, perhaps is a conflict between the explicit, express and specific provisions contained in Section 74 and Sub-section (1) of Section 72 of the Act. This is an illusion. By adopting the process of harmonious construction and by invoking the doctrine of necessity, we shall proceed to interpret the aforesaid two sections of the Act in such a manner as to re-concile the Legislative intent in such a manner as to meaningfully and purposefully give a constructive interpretation, so that the real intention of the Legislature is culled out from a harmonious reading of these two Sections. We are saying so because looked at from a very practical point of view, on and from the appointed day, the State of Jharkhand having come into being, such Government servants (other than those covered by Section 71 of the Act) who, on the appointed day, were actually and physically posted at and serving in the territories either forming part of the successor State of Jharkhand or the successor State of Bihar, should continue to function in, and under such successor States and on that reckoning, therefore, the successor State should be, undoubtedly, the competent disciplinary authority in respect of such employees. To elucidate and elaborate, the real practical and pragmatic aspect is that on the appointed day, the employees (or the Government servants) who have been actually posted in the territories constituting the State of Jharkhand were not expected to migrate into the territory constituting the successor State of Bihar. By looking to, properly understanding and closely appreciating the scheme of the Act, specially the provisions contained in Part-VIII, any one can discover the legislative intent very explicitly and clearly and that is that the Legislature intended that, as on the appointed day, the employees (or the Government servants) who were posted in and performing their duties in a particular area which at that time formed part of either the State of Jharkhand, or the State of Bihar would continue to remain there and once that contingency stood covered, the Legislature went on the provide that, on and from the appointed day with respect to such employees (or such Government servants), the competent authority shall be the State or its functionaries in whose territories the employees would be functioning and posted as on that day. The paramount consideration as therefore is manifestly apparent in the scheme of the Act is the physical and actual posting of the employee as on the appointed day. This paramount consideration emanates clearly, and is patently and latently discernible from a bare reading of Section 74 of the Act which lays down that every person who, before the appointed day was holding any post or discharging duties on any such post in connection with the affairs of the existing State of Bihar in any area which as on that day, fell within the territories of any 'successor State' shall continue to hold the same post or office in that successor State and shall therefore be deemed, on and from that day, to have been duly appointed to the post or office by the Government or, any other appropriate authority of that 'successor State'. The proviso to Section 74 being of equal importance also lays down that such competent authority, on and from the appointed day, would be well within its rights and within the parameters of its jurisdiction to pass, in relation to such person, any order affecting the continuance of such person on such post or office. Viewed thus, if one looks to the language employed in Section 72(2) of the Act, one finds that all that Section 72 says is that every person, who immediately before the appointed day had been serving in connection with the affairs of the existing State of Bihar would, on and from that day, provisionally continue to serve in connection with the affairs of the State of Bihar, unless he was required by a general or special order of the Central Government to serve provisionally in connection with the affairs of the State of Jharkhand.
6. Sub-section (2) of Section 72 in the same breath also lays down that the Central Government as soon as may he after the appointed day, shall be a general or special order determine the successor State to which every person mentioned in Clause (1) shall be finally allotted for service. Sub-section (3) of Section 72 being the consequential provision lays down that after an order of final allotment has been passed by the Central Government, such person if he is not already serving therein would be made available to serve in the successor State to whom he has been allotted by the Central Government.
7. The stipulation, or the provision, as one may call it, that the Government servants on and from the appointed day would, "provisionally continue to serve in connection with the affairs of the State of Bihar" as occurring in Sub-section (1), by a harmonious reading of Section 74 and the proviso to the said section and by invoking the doctrine of necessity should clearly be held to mean that, as from the appointed day, if a person is actually serving in the territory which from that day became a part of the successor State of Bihar, such person would continue to serve there and would be deemed to be a part of the establishment of the State of Bihar and similarly, on the same reckoning and by adopting the same process of interpretation, if, on the appointed day, any person was serving in the territory which formed part of the State of Jharkhand, he would continue to serve, but as a part of the establishment of the State of Jharkhand, and both the said persons, first one in Bihar and second in Jharkhand, would be, on and from the appointed day, deemed to have been duly appointed to the "post" or "office" by the Government of Bihar or Government of Jharkhand, as the case may be, or other subordinate competent authorities in one or the other of the two Governments. The expression "and shall be deemed, on and from that day, to have been duly appointed to the "post" or "office" clearly being a deeming clause, the legal fiction connotes that because of the bifurcation of the existing State of Bihar into two states.-the successor States of Bihar and Jharkhand, the Government servant and employees physically serving in one of these two States, as on the appointed day, would be considered for all intents and purposes to the civil servants appointed by the successor State and that the competent authority in the successor State would have all the powers to deal with them, including the power of passing orders affecting their continuance in service. Looking at it differently, one may perhaps take an extreme view that in totality of the circumstances, but also by adopting a harmonious construction, perhaps the provision of law contained in Section 72(1) of the Act to the extent it stipulates the provisional continuance in service of the employee under the State of Bihar even though he actually and physically, as on the appointed day, was in the territory forming part of the State of Jharkhand, may be considered to have lost its significance, looking to the specific and express provision of law contained in Section 74 of the Act, or alternatively, this also may be considered to be a legal fiction (of course, subject to Section 74) which the Legislature provided at the same time by enacting Sub-sections (2) and (3) of Section 72 which mandated the Central Government to pass final order of allotment to any of the two successor States.
8. We may also attempt to offer another interpretation and a very practical one, to Sub-section (1) of Section 72 of the Act. The expression used in Sub-section (1) "every person who immediately before the appointed day is serving in connection with the affairs of the existing State of Bihar...." does not refer to the location, the area, the place, or the territory in which such a person actually and physically might be serving in connection with the affairs of the existing State of Bihar before the appointed day. In the earlier parts of this judgment we have elaborately referred to the 'persons' serving (even though in connection with the affairs of the existing State of Bihar), "in any area" which on the appointed day would fall within the territories of any of the Successor States. What we had intended and meant by a reading of Section 74 was that Section 74 provided stipulations regarding the "areas" and the definite connotation therein was that the "area" either fell in the Successor State of Bihar or in the Successor State of Jharkhand. In contradistinction to the said stipulation of "in any area" as used in Section 74. Section 72 does not use any expression relating to "any area" or "territories" etc. etc. Can it not, therefore, mean that the legislative intent behind enacting Section 72(1) was that, if before the appointed day any person is serving in connection with the affairs of the existing State of Bihar and such rendering of service was at a place which, on and from the appointed day, did not form a part of the territory of either the Successor State of Bihar or the Successor State of Jharkhand, such a person would continue to provisionally serve in connection with the affairs of the State of Bihar etc. etc. Take for Instance the case of persons posted and serving in Delhi before the appointed day in connection with the affairs of the existing State of Bihar. On and from the appointed day. (as also before then) Delhi would neither form part of successor State of Jharkhand nor would it form part of Successor State of Bihar. Therefore, persons serving in Delhi In connection with the affairs of the existing State of Bihar would, as per the mandate contained in Sub-section (1) of Section 72 continue to serve provisionally in connection with the affairs of the State of Bihar unless orders to the contrary are passed by the Central Government.
9. Whatever may be the view point, whatever may be differing perceptions or opinions, the fact remains that it is Section 74 of the Act which has an overriding effect because Section 74 is the only legal provision which can be given meaningful interpretation, compatible with the clear legislative intent because it is this provision which has a direct nexus with the object sought to be achieved, the object clearly being the formation of the new State of Jharkhand and the control over its civil services by the Government of Jharkhand State or the subordinate competent authorities under the Jharkhand State Government.
10. It will not be out of place at this stage to mention that Section 72 and 74 of the Act are in pari materia to Sections 82 and 83 of the Punjab Re-organisation Act, 1966. Section 74 is also in part materia to Section 116 of the States Re-organisation Act, 1956, but Section 72 of the Act is materially and substantially different to Section 116 of the aforesaid 1956 Act because 1956 Act in Section 115 clearly stipulates and lays down that on and from the appointed day such Government servant who has been serving in the place which form the territory of the successor State should be deemed to have been allotted to and be, therefore, allowed to seive in connection with the affairs of the successor State to the existing State.
11. Once, therefore, it is held that on and from the appointed day, the successor State to the existing State would be the appointing authority in respect of a Government Servant and that the competent authority on and from that day, shall have all powers to pass any order in any respect against such person (including the order affecting his continuance in such post or office) permitting the existing State of Bihar, to either initiate disciplinary proceedings or issue suspension order against such person would be in violation of the express mandate contained in Section 74 of the Act and the proviso thereto. On and from the appointed day, the "existing State of Bihar" as defined in Section 2(e) ceased to exist. On and from the appointed day, the successor States to the existing State of Bihar came into being. These successor States were the State of Bihar and the State of Jharkhand. By a reading of Section 74, therefore, what emerges is that the appoint ing authority in respect of a Government servant would be one of the two successor States, the State of Bihar or the State of Jharkhand and to determine as to which one of these two successor States is the appointing authority, the test is very, very simple. If the employee, as on the appointed day is serving in and posted at a territory forming part of the successor State of Bihar, the State of Bihar would be the appointing authority. If the employee is posted in and serving at a territory forming part of the State of Jharkhand, the State of Jharkhand would be the appointing authority. It is only the competent authority in the successor State which has the power and jurisdiction to initiate action and pass orders. This is irrespective of the accrual of cause of action at any point of time before the appointed day or the place where such cause of action occurred. To elucidate, we may say that if as on the appointed day, a person was serving in and posted at a place which formed part of the territory of the State of Jharkhand and if with respect to such a person cause of action had occurred, say in the year 1998 or 1999, in a place which, as on the appointed day, formed part of the State of Bihar, the State of Jharkhand alone shall be the competent authority and only such competent authority can pass order with respect to such a person. The State of Bihar with respect to such a person would have no jurisdiction to initiate action or pass an order.
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 arid leaving the rest for the State of Jharkhand to do. Similarly 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.
13. For the foregoing reasons, therefore, we have no hesitation in observing and holding that the learned Single Judge was correct in his view about the interpretation of Section 74 of the Act.
The appeal is dismissed, but in the facts and circumstances of the case, without any order as to costs.