Jharkhand High Court
Rajiw Kumar vs State Of Jharkhand And Ors. on 7 April, 2003
Equivalent citations: [2003(3)JCR20(JHR)]
Author: S.J. Mukhopadhaya
Bench: S.J. Mukhopadhaya
JUDGMENT S.J. Mukhopadhaya, J.
1. This application has been preferred by the petitioner against Advertisement No. 3/02-03 published by the Jharkhand Public Service Commission, Ranchi (JPSC), in newspaper "Prabhat Khabar" on 21st August, 2002 so far it relates to appointment the post of Director of Fisheries, Fisheries Department.
By the aforesaid Advertisement applications have been called for from the persons within the age group of 55 years having requisite qualification of MSc (Fisheries), published research papers or Essay having 20 years of experience, for appointment against the post of Director, Fisheries in the pay scale of Rs. 12000-16500/-.
2. The main plea taken by the petitioner is that the post of Director of Fisheries is a promotional post of Class-I Officers of Fisheries Department and cannot be filled up by direct recruitment.
On the other hand, according to the respondents, the post can be filled up by direct recruitment.
The only question to be determined in this case is whether the post of Director of Fisheries, Fisheries Department of Government of Jharkhand is a promotional post of Class-I Officers of Fisheries Department or a post to be filled up by direct recruitment?
3. The respondent - State of Jharkhand have not made ft clear whether the post, in question, is a promotional post or not, though the following stand has been taken by them :--
"A. Application from suitable candidates should be invited through open advertisement;
B. Candidate should hold at least a MSc Degree in Fisheries science from a recognised University;
C. He should have a minimum service experience of at least 20 years out of which at least five years experience should be on class-I post. Only such candidate should apply who were presently working in the pay scale of Rs. 14300-18300/- or in a scale immediately below this scale. Persons working in the pay scale of Rs. 16400-450-20000/- could also be considered.
D. The following qualifications would also be desirable and necessary weightage would be given for them;
Research paper, Discussion or same publication accredited to the candidate;
Administration experience, if any; Working knowledge of computers."
Further case of the State of Jharkhand is that the post, in question, was earlier advertised on 17th August, 2001, but no suitable person having applied, the post has been re-advertised by the J.P.S.C. In the Advertisement No. 3/02-03, the J.P.S.C. lowered down the scale of pay of the post of Director of Fisheries of their own from Rs. 14300-18300/- to Rs. 12000-16500/-.
5. The petitioner has relied on a statutory rule known as Animal Husbandry and Fisheries (Fisheries) Service Recruitment Rules, 1993 framed by the Governor of Bihar under proviso to Article 309 of Constitution of India, gazetted on 14th January, 1993 (hereinafter referred to as the 1993 Rules), in support of his claim.
6. According to the JPSC. the 1993 Rules having not adopted by the State of Jharkhand, it cannot be relied upon. In absence of any rule, earlier an advertisement was published and in pursuance of which only 12 persons, including the petitioner applied.
7. In view of aforesaid stand taken by the JPSC, it is required to be determined whether a rule framed by the then State of Bihar, after reorganization of the State remains in force in the successor State of Jharkhand or not. To answer the aforesaid question, it is necessary to notice Sections 84 and 85 of the Bihar Reorganisation Act, 2000, which read as follows :--
"84. Territorial extent of laws.--The provisions of Part II of this Act shall not be deemed to have effected any change in the territories to which any law in force immediately before the appointed day extends or applies, and territorial references in any such law to the State of Bihar shall, until otherwise provided by a competent Legislature or other competent authority be construed as meaning the territories within the existing State of Bihar before the appointed day.
85. Power to adapt laws.--For the purpose of facilitating the application in relation to the State of Bihar or Jharkhand of any law made before the appointed day, the appropriate Government may, before the expiration of two years from that day, by order, make such adaptations and modifications of the law, whether by way of repeal or amendment, as may be necessary or expedient, and thereupon every such law shall have effect subject to the adaptations and modifications so made until altered, repealed or amended by a competent Legislature or other competent authority.
Explanation.--In this section, expression "appropriate Government" means as respects any law relating to matter enumerated in the Union List, the Central Government, and as respects any other law in its application to a State, the State Government.
8. From the plain reading of Section 84, it will be evident that the reorganization of State shall not affect any change in the territories to which any law was in force immediately before the appointed day, until otherwise provided by a competent Legislature or other competent authorities.
It preserves the continuance of the laws till State Legislature or the competent authority alters the law. Section 84 is to provide for the interregnum between the reorganization of the State and the time by which the Legislature of such State suitably amend, alter or modify such laws. Such provision has been made with an objective to keep alive the laws and regulations in the territories of successor State.
9. Under Section 84, the laws of the combined State continues in both the successor State of Bihar and Jharkhand until otherwise provided by 'a competent Legislature' or the 'competent authority', but the power of adoption of laws with amendment has been delegated to both the successor States of Bihar and Jharkhand under Section 35 of the Bihar Reorganisation Act, 2000.
10. For example, a law which requires no modification, may be allowed to continue by the successor State until otherwise provided by a 'competent Legislature' or the 'competent authority' under Section 84. but if the State Government intends to modify such law, may do so, after adoption of such law under Section 85 of the Bihar Reorganisation Act, 2000.
11. In view of aforesaid provision of law (Section 84), even if the 1993 Rules has not been adopted with modification by the Government of Jharkhand under Section 85. the 1993 Rules continues to be in force in the territories of both the successor State of Bihar, as also Jharkhand.
12. As per Schedule I of the 1993 Rules, the post of Director of Fisheries is a cadre - non-selection post, required to be filled up by promotion on the basis of seniority-cum-merit, from amongst the incumbent of Class-I post having working experience of at least 10 years in Class-I, such as Regional Director of Fisheries; Joint Director of Fisheries: Principal or equivalent post, to be selected by a Departmental Promotion Committee headed by the Chairman of Public Service Commission or its nominated member and other members i.e, Secretary, Fisheries Department; Personnel Secretary or his nominated representative and a SC/ST Officer nominated by the Personnel Department not below the rank of Joint Secretary.
13. The statutory Rule 1993 being specific, it is not open to the Respondents to fill up the post of Director of Fisheries, Fisheries Department, Jharkhand by direct recruitment nor the J.P.S.C. has jurisdiction to lower down the scale of pay of the post as allowed by the State.
14. For the reasons aforesaid, the Advertisement No. 3/02-03 so far as it relates to the post of Director of Fisheries, Fisheries Department, Jharkhand being against the provisions of law, it is declared illegal and is set aside.
15. The respondents are directed to fill up the post of Director of Fisheries, Fisheries Department, Government of Jharkhand as per 1993 Rules, preferably within three months from the date of receipt/production of a copy of this order.
16. The writ petition is allowed with the aforesaid observations and directions.
However, there shall be no order, as to costs.