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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.