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CASE NO.:

Appeal (civil) 3307 of 2007

PETITIONER:

INDRADEO PASWAN

RESPONDENT:

UNION OF INDIA & ORS

DATE OF JUDGMENT: 27/07/2007

BENCH:

G.P. MATHUR & P.K. BALASUBRAMANYAN

JUDGMENT:

J U D G M E N T

CIVIL APPEAL NO. 3307 OF 2007

(Arising out of SLP(C) No.16831 of 2006)

P.K. BALASUBRAMANYAN, J.

1. Leave granted.

2. The appellant was appointed initially as a

District Mining Officer in the State of Bihar on 21.6.1983.

On 21.3.1993, he was promoted to the post of Deputy

Director (Mines) in the State of Bihar. According to him,

on 6.3.1997, he was appointed on officiating basis as

Additional Director (Mines). It is the further case of the

appellant that the Departmental Promotion Committee

had met on 2.6.1998 and had recommended the case of

the appellant for promotion to the post of Additional

Director (Mines). The appellant filed C.W.J.C. No. 5871 of

1998 in the High Court of Patna praying for the issue of a

writ of mandamus directing the respondent therein, the

authority concerned, to take a final decision with regard to

the promotion of the appellant. The High Court by order

dated 28.4.1999 allowed the Writ Petition and issued a

direction to the respondent therein to consider the case of

the appellant for promotion within a period of three weeks

from the date of the judgment. Meanwhile, the State of

Bihar was reorganized under the Bihar Reorganization

Act, 2000. The State of Jharkhand was carved out of the

State of Bihar and the two separate states came into

existence on 15.11.2000. Anticipating the coming into

force of the Act and the bifurcation of the State in terms of

the Scheme adopted by the Act, the Central Government

on 6.11.2000 provisionally allocated the services of the

appellant to the State of Jharkhand as Additional Director

(Mines). According to the appellant, he took charge of the

post of Additional Director (Mines) in the State of

Jharkhand on 14.11.2000.

3. The Bihar Reorganization Act provided for

division of the various cadres in the service of the

undivided State of Bihar. Under Section 72 (2) of the Act,

the Central Government had to determine by special or

general order, the successor State to which every person,

who immediately before the appointed day was serving in

connection with the affairs of the State of Bihar shall be

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finally allotted for service and the date with effect from

which such allotment was to take effect, as soon as may

be after the Reorganization Act came into force. The

appointed day in terms of the Act was 15.11.2000. Under

the Scheme adopted for division of cadres and allocation

of posts and personnel, the officers were called upon to

submit their options for serving either in the reorganized

State of Bihar or in the newly created State of Jharkhand.

Letters were issued by the Central Government calling for

such options. The appellant gave his option indicating

that he would like to be allocated to the State of

Jharkhand. The State Advisory Committee, created for

the purpose, prepared a tentative allocation list of the

employees in various departments including the

Department of Mines. Therein, the appellant was

allocated to the State of Bihar and was shown at No. 1 in

the seniority list of his Department. After the publication

of the tentative allocation list dated 8.8.2001, the State

Advisory Committee called for objections thereto. The

appellant submitted an objection dated 3.10.2002

reiterating his preference to be allocated to the State of

Jharkhand.

4. Meanwhile, pursuant to the original direction of

the High Court and the further direction issued in that

behalf, the appellant was promoted by the State of Bihar

to the post of Additional Director with effect from

21.6.1997. According to the appellant, on 29.6.2001, he

had been posted as Director (Mines) In charge, in the State

of Jharkhand. In the final allocation list, the appellant

was finally allocated to the reorganized State of Bihar not

accepting the option exercised by him. This was by order

dated 24.2.2005. Pursuant to this allocation of the

appellant to the reorganized State of Bihar, the State of

Jharkhand relieved the appellant with effect from

10.5.2005. Feeling aggrieved thereby, the appellant filed

W.P. (C) No. 445 of 2006 in the High Court of Jharkhand

at Ranchi challenging the order dated 24.2.2005 allocating

the appellant to the reorganized State of Bihar. It is seen

that the Writ Petition was filed in January 2006 almost

one year after the order. The High Court, by judgment

dated 31.1.2006, dismissed the Writ Petition filed by the

appellant on the basis that no adequate ground was made

out to interfere with the allocation of the appellant to the

reorganized State of Bihar in the cadre division. Feeling

aggrieved, the appellant filed an appeal before the Division

Bench of the High Court. The Division Bench, presumably

directed the State Advisory Committee concerned with the

cadre division, to file an affidavit in answer to the Writ

Petition at the appellate stage. Such an affidavit was filed.

Thereafter, considering the relevant aspects, the Division

Bench of the High Court dismissed the appeal of the

appellant finding no reason to interfere with the decision

of the Single Judge or with the allocation of the appellant

to the reorganized State of Bihar itself. It is feeling

aggrieved by the dismissal of his Writ Petition thus, that

the appellant has approached this Court with this appeal.

5. It is seen that the appellant is a native of a

District which is part of the reorganized State of Bihar. It

is also seen that the appellant was the senior most officer

in the Department of Mines at the relevant time.

According to the State Advisory Committee and the States

of Bihar and Jharkhand, there was only one post of

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Director of Mines in the entire service in the undivided

State of Bihar as on the appointed day and that post had

to be allocated to the reorganized State of Bihar as per the

settled norms. Since the appellant was the senior-most

person in the cadre of Deputy Director (Mines) on the

appointed day and since nobody occupied the promotional

post of Additional Director (Mines) or the Director of Mines

as on that day, the appellant had to be allocated to the

reorganized State of Bihar so that he could aspire to get

and get his due promotion as the Director of Mines. In

view of this position, the occasion for entertaining the

option of the appellant did not arise since if on the

appointed day, the appellant had been allotted to the State

of Jharkhand, someone junior to him could have to be

promoted to hold the post of Additional Director of Mines

and subsequently the Director of Mines and that would

have been unjust to the appellant and would have been

unfair. Thus, the stand adopted is that the option of the

appellant could not be accepted in the circumstances of

the case. Nothing unfair was done by such allocation.

6. The learned single judge of the High Court held

that the allocation of the appellant had been done after

following the proper procedure laid down in that behalf,

and that no ground had been made out for interfering with

the allocation of the appellant to the reorganized State of

Bihar. As regards the claim of the appellant that his

position has been considered as the Deputy Director

(Mines) when he had actually been posted with

retrospective effect as Additional Director, the learned

single judge observed that it was for the appellant to bring

that aspect to the notice of the competent authority and

get it rectified and that was no reason for interfering with

the allocation itself. The Division Bench, in the appeal,

after noticing the stand adopted in the counter affidavit

and taking note of the principle laid down earlier in the

High Court that interference with the allocation should be

slow and only on very clear grounds, held that no grounds

were made out for interference with the allocation of the

appellant in the reorganized State of Bihar and that the

rejection of his option was not arbitrary or unreasonable.

Taking note of the liberty granted by the learned single

judge to the appellant to claim his due place in the service

in the reorganized State of Bihar, the Division Bench

dismissed the appeal.

7. The learned Senior Counsel for the appellant

contended that the order allocating him to the reorganized

State of Bihar has turned out to be punitive since it

altered his conditions of service since he was officiating as

Additional Director with effect from 21.6.1997 though the

order in that behalf itself was passed only on 17.11.2003.

It was further contended that the allocation was vitiated

by non application of mind by the State Advisory

Committee. The guidelines issued in the matter of

allocation had been violated. The High Court has refused

to interfere only on the basis of the misunderstanding of

an earlier decision of that Court in Prakash Chandra

Sinha etc. Vs. Union of India & Ors. [2003 (4) J.C.R.

165] These contentions are met on behalf of the

respondents by pointing out that the appellant was the

senior-most in the Department of Mines, had been given

his due place and in fact it was to protect his position as

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No. 1 in the ranked list and by taking note of the

prospects of his promotion, the availability of the only post

of Director of Mines as on the appointed day that he was

allocated to the reorganized State of Bihar and there was

no question of the order of allocation being punitive as

contended. The norms set down and the guidelines issued

had been duly followed and there was no reason to

interfere on the ground of non compliance with the

guidelines or on the ground of non application of mind. In

Prakash Chandra Sinha's case, the High Court had laid

down that unless the court is compelled to interfere on the

basis of a clear illegality or wednesbury unreasonableness,

the court should leave the allocation of personnel in the

various services as it was and that acceptance of

individual grievances, unless clear cases are made out,

would make it a never ending process and that would not

be in the interests of the reorganized States or of the

employees and going by this yardstick, the High Court was

justified in the case on hand in not interfering with the

allocation of the appellant to the reorganized State of

Bihar. It was also submitted that after all, the appellant

was a native of a district in the reorganized State of Bihar

and he was the senior-most in the Department of Mines

even in the undivided State of Bihar and continues to be

so in the reorganized State of Bihar and the solitary post

of Director of Mines as on the appointed day, available

only in the State of Bihar, was within the reach of the

appellant and he could not be deprived of that prospect of

promotion by being allocated to the State of Jharkhand,

which as on the appointed day, did not have the post of

Director of Mines.

8. We may notice straightaway that no case of mala

fides or irrationality has been made out in the matter of

allocation of the appellant to the reorganized State of

Bihar. The case is pitched only on the ground of non-

acceptance of the option of the appellant and an attack on

the grounds for its rejection.

9. The main contention on behalf of the appellant

is that the appellant had worked for a major part of his

tenure in the Department in areas now forming part of the

State of Jharkhand, that the appellant had exercised his

option to be allotted to the State of Jharkhand, that the

appellant had been posted as Incharge Director (Mines),

Jharkhand, a post which had been created subsequent to

the bifurcation and the appointed day and under the

circumstances, the option exercised by the appellant

ought to have been accepted. It was also submitted that

the relevant date was not the appointed day and that the

subsequent developments of the direction issued by the

High Court and the order passed by the State of Bihar

retrospectively promoting the appellant as Additional

Director with effect from a day prior to the appointed day,

should have been taken note of. The effect of the

retrospective promotion could not be ignored. The

decision in R.M. Ramual Vs. State of Himachal Pradesh

& ors. [(1989) 1 S.C.C. 285] was relied upon as supporting

the position that the subsequent development was bound

to be taken note of by the State Advisory Committee and

by the Central Government. Having gone through the

decision relied upon by the learned counsel, we find that it

related to a question of inter se seniority and this Court

held that under Section 82(6) of the Punjab

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Reorganization Act, 1966 conditions of service applicable

immediately before the appointed day could not be varied

to the disadvantage of an officer except with the previous

approval of the Central Government. An order passed

rectifying an error did not adversely affect the conditions

of service and hence did not require the prior consent of

the Central Government. The decision of the High Court

was set aside and the rectified seniority list was restored.

The restored seniority had to be taken note of. We cannot

understand this decision as an authority for the position

that in the case of a reorganization like the one involved

under the Bihar Reorganization Act, 2000, the relevant

date for bifurcation and allocation is not the appointed

day. The acceptance of the argument that subsequent

events are bound to be taken note of in various individual

cases would mean that the bifurcation would never

become final or at least would not become final for years

together, a state of affairs which the court or any

executive, must avoid as far as possible.

10. Here, the State Advisory Committee has

explained the position as to why the appellant had to be

and had been allocated to the reorganized State of Bihar

and the context in which his option to serve in the State of

Jharkhand could not be accepted. We find that the

reason given is not only rational but is also sustainable.

The fact that the appellant had worked for a period of 7

years out of 13 years and 6 months of his service in areas

which now form part of the State of Jharkhand is neither

here nor there. For, most of the mines in the erstwhile

State of Bihar are in areas which have now gone to

Jharkhand. So, that fact does not by itself give any right

to the appellant to claim that he had a right to be

allocated to the reorganized State of Jharkhand.

11. Learned counsel relied upon the decisions in D.

Rajiah Raj & Ors. Vs. Union of India & Ors. [(1973) 1

S.C.C. 61] and Mohd. Shahabuddin & ors. Vs. Union of

India & ors. [(1975) 4 S.C.C. 203] to emphasize that the

power of the court to judicially review such an order is not

taken away and that since the Central Government has a

power of review, this Court could always direct a

reconsideration by it of the case of the appellant. As we

have found the allotment of the appellant to the State of

Bihar to be based on the relevant provisions of the Act and

the principles adopted for bifurcation of the services on the

reorganization of the State of Bihar, nothing turns on this

argument. In fact, we are inclined to think that if the

appellant had been allocated to the State of Jharkhand, he

could have legitimately raised a claim that his entitlement

to be considered for promotion to the only post of Director

of Mines available and assigned to the State of Bihar,

would be affected and his allocation to the State of

Jharkhand has prejudiced him. We have already held

that the relevant date is the appointed day under the Act

for the coming into existence of the two States and on that

basis the State of Jharkhand did not have the post of

Director of Mines as on the appointed day and the

appellant was the senior-most member in the service

eligible to be considered for it. In the case on hand, even

if the retrospective promotion of the appellant as

Additional Director (Mines) is taken note of, it would only

mean that he would be the senior most aspirant to the

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post of Director of Mines, a post assigned to the

reorganized State of Bihar and a post not available in the

State of Jharkhand as on the appointed day. We are

therefore satisfied that no occasion has arisen for the

court to exercise its jurisdiction in the matter of allocation

of the appellant to the reorganized State of Bihar. The

arguments based on Section 73 of the Act would, in our

view, in fact support the allocation of the appellant to the

reorganized State of Bihar. Therefore, we are satisfied that

the appellant has failed to establish that any of the

provisions of the Act or the norms set out in that behalf

for bifurcation of the service, has been violated while

allocating the appellant to the reorganized State of Bihar.

12. We see no reason not to accept the principle

adopted in Prakash Chandra Sinha (supra) by the High

Court that the allocation should not be interfered with on

individual grievances relating to non acceptance of options

exercised, unless clear illegality or wednesbury

unreasonableness is established. The State was

reorganized with effect from 20.11.2000. We are in the

year 2007. It had taken almost five years for the Union of

India to publish the final list of allocation regarding this

Department. In the absence of any clear ground for

interference found in the case, merely on the ground that

the appellant had opted for going to the State of

Jharkhand but had been allocated to the State of Bihar, it

does not appear to be necessary or proper to interfere with

the order of allocation. It is brought to our notice that the

State of Bihar had subsequently informed the appellant

that he had been given regular promotion to the post of

Additional Director of Mines by the Department of Mines

and Geology and that he could join that post. There is

therefore no subsisting reason for the appellant to

complain even as regards the post to be held by him in the

reorganized State of Bihar. It is not necessary for us to

deal with or comment on the consequences of the

appellant, in spite of being relieved from the State of

Jharkhand on 10.5.2005 pursuant to the final allocation,

not joining the service in the reorganized State of Bihar.

Suffice it to say that in this appeal we see no ground to

interfere with the decision of the High Court.

13. We therefore affirm the decision of the High

Court and dismiss this appeal with costs.