WP/414/2002 of DILIP DESHMUKH Vs THE STATE OF C.G.and ORS. on 6 December 2003

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A.F.R,

HIGH COURT OF JUDICATURE AT BILASPUR, CHHATTISGARH

WWT^PETITION N0.414 OF 2002

Dilip Deshmuldi

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'- Versus -

State of Chliattisgarh and others

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AND

WRITPETITION N0.1269 OF 2001

Dhamicndra Swaroop Jaiu

- Versus -

Union of India aad others

POST FOR ORDER ON 6^ OF DECEMBER, 2003,

Sd/-,L.C.BHADOOJudge

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HIGH COURT OF JUDICATimB AT BILASPUR. CHHATTISGARHWrit Petitioa No.414 of 2002

PETITIONER:

"KESPONDENTS;

9. Shri P.K. Dave,Addl. ChiefJudicial Magistrate,Raipur (C.G.)

10. ShriG.L. Sonwani,ChiefJudicial Magistrate,Kawaidha,District: Rajnandgaon (C.G.)

11. Shri K. Vmod Kujur,CivU Judge, Class-I,Dhamtan, Distt.; Raipur (C.G.)

12. Shri Dilesliwar Rafhia,Additional CivU Judge, Class-II,Si.u-ajpur,Distt. :Ambikapur-Surguja (CG)

5. b)Union of Indja,Through: Mmistiy of Law aadJustice, Goveminent of India,New DeUu.

AND

Writ Petitlon No.1269 of 2001

Versus

RESPONDENTS:

Prcscnt; -

Mr, H.N. Vyas, Advocate:

Mr. V.V.S. Murthy, Addl. Central Govt.Staadixig Counsel;Mr. Prashaat Mishra, Advocate:Mr. Saajay K. Agrawal, Dy. A.G.:Mr. Manindra Shrivastava, Advocate:Mr. K.A. Ansari, Advocate:Mr. Malav Kumar Bhaduri, Advocate:

For the petitioner

Before: Hoa'ble Shri L.C. Bhadoo, J.

Q^RDER

(Passcd on fc-t^"Dcccmbcr, 2003)

The foUowine order of fhe Court was passed by Justice L.C. Bhadoo: - '. By this writ pctition (W.P.No.414 of 2002) under Arttdes 226 & 227of the Constitution of India, petitioner Mr. Dilip Deshiaukh, District& Sessions Judge (Super Tune Pay Scale), Iias chaUenged ftie orderdated 07.06.2001 passed by the Union of India ordering provisionalatlocatiou of respondeut No.6 Mr.B.K. Shrivastava, Distri.et &Sessions Judge, Rewa (M.P.) retrospectively w.e.f. 01.11.2000 to theSte.tc of Chliattisgarh under Section 68 (1) ofthe Madhya PradeshReoi^aaisation Act, 2000, and also the order dated 07.12.2001passed by the Union of India by which under the Above Super TuneScale categoiy, respondents 6 & 7 nainely, Mr. B.K. Shrivastava &Mr. V.K. Shrivastava, respectively, have been aUocated finally to ftieState ofChIiamsgarhw.e.f. 01.11.2000.

2. Similarty, by writ petition No, 1269 of 2001 under Articles 226 & 227of fhe Constitution of Indla, petitioner Mr. Dhanaeudra SwaroopJaui,District&Sessions Judge,Raipur, ttas chaUengedtheprovisional[allocation][ of][ Mr.][ B.K,][ Shrivaslava,][ District][ &][ Sessions]Judge, Rewa (M.P.), vide order dated 07.06.2001 passed by theUnion of India under Section 68 (1) offhe M.P. Reorgaiusatiou Act,2000 aud iilsu tkc fiual atlocatiou ofabovc Iwo OIIicci-s i.c. Mr. B.K.Shrivaslava aad Mr. V.K. Shrivastava.

-u. Siacc, in bofh thcsc writ pctitions, samc qucstion of law is involvcdaad also same aUocation orders are chaUenged, they are beiagdisposed of by this conuaon order.

4. At fhe tune of fhe provisional aUocation botfa thc petitioncrs wcreworfcmg iu the cadre of District & Sessions Judge in Super TimeScale, whereas, bofh the respondents (respondents 6 & 7) wercworking in fhe cadre of District & Sessions Judge in. Above SuperTime Pay Scale,Facts leading to filuig of these writ petitions arethat fhe Goverument of India decided to bifurcate the State ofMadhyaPradeshintotwoStatesi.e.MadhyaPradeshandChliatdsgarh, accordiagly a BUl was laid before fhe Parliament^

uiider the enabUag power of Articles 2, 3 &4 of the Constitution ofIndia.Rclcvant parts of Articlcs 2, 3 & 4of thc Constitution ofIndia, which are relevaut in these cases are reproduced below: -

2. Adaaissloa or establislunent of aew States..—Parltament may by law adinit iuto the Union, or estabUsh,new States on such tenns aad conditions as it tfaiiiks fit.

3. Formation of new States and alteration of areas,boundaries or nanies of ejristtatg 8tates..—Parliataeiitinay by law—

(a) form a ncw Stetc by separation oftcmtory fmm anyState or by uniting two or ruore States or parts ofStates or by unitmg any territoiy to a part of anyState; (b) iacrease the area ofany State; [E.xpluriutiunI.—Iii[this][ arUclc,][ iu][ clauscs](a)[lu](c),["Stalc]iacludes a Urdon temtoiy, but in the proviso, "State" doesnot iuclude a Union temtoiy.

Explanation ff—Thepower conferred on Parliainent byclause (a) includes fhe power to form a new State orUnion territoiy by unituig a part of auy State or Uniontemtoiy to auy other State or Union territoiy.j

4. Laws made uader Articles 2 and 3 to provlde forthe ainendment of the Rrst and the Fourth Schedalesaadsupplemeatal,lacldentalandcoasequeatialmattea's.—(1) Any law referrcd to in Ardcle 2 or Article 3shatt contam such provisions for the amendment of theFirst Schedule and the Fourth Schedule as may benecessaiy to give eflFect to the provisions of the law andmay also contam such supplemental, uicideutal andconsequentialprovisions(uicludiug provisions astorepresentation ia Parliament aud in the Legislature orLegislatures of the State or States affected by such law) asParUament inay deem. necessaiy.(2) No sucli ]aw as atbresaid shall be deenied to be aaamendment of ttus Coastitution for the purposes ofArticle 368.

5. The ParUament resolved to bifurcate fhe State of Madhya Pradesh asmentkined above and in pursuance of fhat, Act No.28 of 2000 i.e.fhe Madhya Pradesh Reoi^anisation Act, 2000, was enacted[by][ fhe]ParUament for providmg the territories of fhe two States and toinake fhe necessary suppleiaental, incidental aad consequentialprovisions relatmg to representation in Parliainent aud iu fhe StateAsseiublies, distribution of revenues, apportionment of assets and liabitities, niatiageineu.t and developiaent of water resources andothcr mattcrs. la Part-LV of fhis Act (No.28 of 2000) a provision wasinade regardnig H^h Court and ia F^rt-VIII Provisions as to serviceswere niade. Relevaat Sections 68, 69, 71 and 72 read as under: -

68. Pro^sions relating to servlces in Madhya n-adeshaad ChhattisgEU'h.—(l)Eveiy person who iminediatelybefore fhe appoiuted day is semng in connection with theaffairs of fhe existing State of Madhya Pradesh shaU, onand finni that day provisionalty contfaiue to serve inconnection wittt theafitairs ot' the State of MadhvaPradesh ualess he is required, by general or special orderof theCentral Govenuneut toserve provisionaUy iacoiuiection with fhe affau-s of the State of Cfaliattisgarh:

Provided that no direction shaU be issued underthis section after the expuy of a period of one year fiom.the appointed day.

(2) As soon as may be after the appoiated day, the C^ntralGoverum.eut shatl, by general or special onder, detei'iniaethe successor State to which eveiy person referred to insub-section (1) sbatl be finalty allotted for service and fhedate wifh effect from which such aUotment shall takecffcct or bc dccincd to havc takcn cffcct.

(3) Every person whoisfinaUy aflotted under fheprovisions of sub-section (2) to a successor State shaU, ifhe is not already serviag fherein be niade available for. serviag in fhe successor State frovi such date as m.ay beagreed upon between fhe Goveruments concemed or indefault of such ^reeinent, as inay be detemuned by fheCcntral Govenunent.

69. Provlsions relating to other servlces.—(1) Nothingin ttus sectiou or section 68 shaU be deemed to affect onor after fhe appoiated day fhe operation of fhe provisionsof Chapter I of Part XIV of the Constitution in relation todetermiaation of the conditions of service of personsscrving in coitacction with thc affairs of fhc Union or anyState:

Provided fhat the conditions of service appUcableinunediately before the appointed day iu fhe case of auyperson deemed to have been attocated to the State ofMadhya Pradesh or to fhe State of Chliattisgarh undersection 68 shaU not be varied to his disadvantege exceptwith fhe previous approval ofthe Central Govenunent.

(2) AU services prior to the appoiuted day rendered by apersou - (a)if hc is deeiucd to tiave becn aUocated to any Stateuader section 68, shaU be deemed to have been rendered iii coniiection with fhe affaiis of thatState; (b)if he is deeined to have been allocated to theUnion in coimection with fhe administration ofthc ClLhallisgai-h shaU bc dccuicd tu havc bccureTidcred in connection wit.h thc affairs of tTieUnion; for the purposes of the rules regulating his conditions ofservice.

(3) The provisions of section 68, shall not appty ia relationto nienibers of any AU India Service.

71. Advisory coinmittses.—The Central Govenunentmay, by order estabUsh one or niore Advisoiy Coimnitteesfor tiie purpose of assisting it ia regard to[-]

(a) the dischai^e of any of its functions uiider thisPai't; aiid (b) the eusuring of fair and equitablc treatment to aUpersons affected by the provisions of fhis Part aadfhe proper consideration of any representationsmade by such persons.

72. Power of Ceatral Government to give directions.—The Central Ctoveminent inay, give such directions to fheState Goverrmient of Madhya Pradesh and the StateGovenuuent of Chhattisgarh as may appear to it to benecessaiy for fhe purpose of giviag efiFect to fhe foregoiagprovisions of tfais Part and the State Goverainents shallcoinpfy wifh. such directions.

6. Iu oitlcr lo caiiy oul tbc piuvisiuus uf abovc Scctious, Uic CcultalGovenunent issuedguideluies for provisional allocation uuder\Section 72 ofAct No.28 of 2000 ou 13ih September, 2000, regardmgtbe prixiciples govemiug fhe provisional aUocation of personnelbelonging to fhe semces ofher ibsai the ;'yi ludia Semces to the newSta.lcs iTi accoiilaucc with tlic piuvisious of thc Rcoi^auisatiou Acts,2000 and thereafter, for final aUocation guideliues were ^ain issuedby the Goverrtment of India vide order dated 21st/22nd Deceiaber,2000.A provision of Advisoiy Conunittees was provided for underSection 71 ofthe Act aad State Advisory Committee was constitutedvidc oixlcr datcd 01.01.2001, as pcr Uic pruvisiuus of Scctiou 71 ofthe Reoi^anisation Act; meeting of that Committee was held on 23Td& 24th February, 2001, under ttie Chau-maaship ofMr. N.V. Lohaai.In fhe meeting of fhat Cominittee certam. modalities for aUocation of

ftie persoimel to the successor States were laid down aad lainutesoffhc incctiag wcrc also prcparcd. As pcr clausc 3.3 offhc ininutes,it was decided that as thc aUocation of the einployees of StateAssembly and Judiciaiy also conies luider the purview of theReorgaaisation Act, fherefore, looking to fhe speGialties of theseservices, fhe allocation ofemployees ofthese troo institutions shouMbc madc in. consultation wifh fhc Hon'blc Spcakcrs of fhc both thcAsseiablics aad the Hon'ble Chief Justiccs of both fhe H^h Courts.Again as per clause 3.6 the pnnciples goveming the distnbution ofposts were laid down and it was decided to atlocate 26.23% posts toftie newly created State of Chliatdsgarh aad ia fhe last Unes ofChaptor-Vrcgardiagfhcdistributionof thcscrviccsof thceinployees of the State Judiciary and the State Asseinbly, it wasnientioned that steps should be taken tbr their allocation accordiagto the advice of HoTlTlle. the Speakers of the Statc AsscTnblies andHon'ble the Chief Justices of both fhe High Courts.Further, inordcr to cany out fhc purposc of thc Act, guidcUncs dated 22ndMarch,2001(AnnexurcP-10)werealsoissuedbytheKeorganisation Cell uader the sigiiature of Mr. Kaghuvendra SinghSiroTii, PriTicipal Secrctary, Govemment of Madliya Pradesh, forallocation of the einployees.7. In order to appreciate ftie arguments advaaced by the leamedcoiuisel for the parties, it is necessaiy to inention here the relevaatservice particulars ofconcerued Officers: - ^,Mr. A.K. Tiwari;He was ia fhe Above Super Tixne Pay Scate since1999.He retired on 31rt October, 2001.InitiaUy he opted for theState of Chhattisgarh. Accordingfy, he was provisionally allocated toUicSiatcuf Clilialtisgarhw.c.f.01.11.2000.Howcvcr,ou07.09.2001, oue day before the ineetuig of Hon'ble the ChiefJustices of fhe two High Courts, he gave in writing fhat he waat tochauge his option and waated to be aUocated to the State of MadhyaPradesh.Accordingly, fhe two Hon'ble Chief Justices advised fhathc shoulil bc aUocalcd lo tlic Statc of Madhya Pi-adcsh.Bul aflcrfhat ineetmg iu the inonth of October, he agaiu wiftidrew his requestfor chaage of option for allocation.As his earUer request wasatoeady acceded and recomniendations were already sent to the )T

Central Govenrment, he was fiiiaUy allocated to the State of MadhyaPradcsh.

Mr, D.S. Jaui; On 01.11.2000, he was m the Siiper Time Pay Scale.He retired on 31.07.2002.His name was approved for graat ofAbove Super Time Scale on 08.07.2000 by the High Court ofMadhya Pradesh.As there was no vacancy ia this scale tiU01.11.2000, therelbre, he was not given. fhis scale tiU fhe provisionalaUocation to the State of Chliattisgarh,Howcver, he was grantedAbove Super Time Scale w.e.f. 10.08.2001 by the High Court ofChliattisgarh.

Mr. B.K. Stuiyastava:He was ia fhe Above Super Time Pay Scalesiace 1999, before the bifurcation 6f the State of Madhya Pradesh.Hls honie district was VaranasiHe was atlowed by the High Courtof Madhya Pradesh to chauge his home district froia Varauasi toBUaspurvideorderdated04.09.2000,whereas,aspertheguidelines issued by the Central Goverainent, for the purpose ofaUocatioa, the hoine district was to be considered as on 1st of April,2000 aad It was decided not to aUow the change of houie district,fhereafter.InitiaUy he opted for fhe State of Madhya Pradesh, butlateron,videletter dated11,01.2001(AnnexureR-2/1),herequested the Registrar General, Madhya Piadesh High Court, tochaage his option aad the sanie was sent to fhe Registrar General ofChlialtisgaih High Coiu'l ou thc saiuc day.Vidc lcUcr dalcd30.01.2001 (Aimexure R-2/2)Mr. T.K. Jha, the then RegistrarGeaeral of Chhattisgarh High Court conveyed to the High Court ofMadhya Pradesh that the High. Court of Chliatdsgarh gives consentand expresses no objection if Mr. B. K. Shrivastava is aUocated to tlieStalc of Chliatlisgai-h aud thcicaftcr, vidc uiucr uatcd 07.06.2001,Mr.B.K. Shrivastava was provisiouaUy aUocated to the State ofChliatdsgarh.

Mr. V.K. Shrivastava:He was ah-eady drawing the Above Super tiincFayScalesiace1999,before formation of thenewHtate ofChhattisgarlii.e.infhe iindividRdcrstwlnlcState of MadhyaPradesh.He had not given his option for atlocation to either of theStates.IIowever, ia final allocatkin he was aBocated to fhe State of >

ClLhattisgarh, as his hoine District Jagdalpur is part of the State ofChliatdsgarh.

8. TheHonTileChief Jiistices of thetwoHigh Coiuts met on08.09.2001 at Jabalpur for advisiag final atlocation of JudicialOfficers to ftie successor States and ia that ineeting the Hou'bleCtdefJustices had decided to advice to fixialty allocate, among offaerJudicial Oi5cers of' other pay scales, Mr. B.K. Shrivastava & Mr.V.K. Shrivastava of the Above Super Time Pay Scale to the State ofChliattisgarb aad Mr. A.K. Tiwari ofAbove Super Time Pay Scale tothe or^mal State ofMadhya Pradesti w.e.f. 01.11.2000.

9. We have heard the leamed counsel for the parties at lengtti.

10. lt is made ciear liere that in these writ petitions the only challenge isto the allocation of respondents 6 &, 7.I^camed coiinsd for fhepetitioners veiy fiaakly subnutted at the Bar that fhe petitioners arenot chaBcnging thc final allocation of ofhcr Of&ccrs.As thcpetitionersareaffectedandaggrievedbytheaUocationofrespondents 6 & 7, therefore, both the writ petitions sliould beconsiderKd to that extBnt only.TherRforE;, we an" rcqiiirRd to deridcfhe questiou up to fhat extent only and we are not entermg iuto fhedctails ofaUocation ofaU thc of&ccrs ofothcr pay scalcs.

NATURE OF GUIDBLINES

ll.Mr.SaajayK.Agrawal,the leaniedDeputy Advocate General,»,appeariag on behalf of the State of Chhattisgarh argued that the\^uideliaesissuedbytheCcntralGoverruuent,theAdvisoiyConunittee and fhe State Reoi^aaisation CeU are not biadiag inua.luj-c as Uic samc ait; uot staluloiy iu ualuit;.Thcicfoic, tlicy aicnot enforceable at law.But, we do uot find any force ia fhisai^ument of the learued Deputy Advocate General for fhe reasonthat as extracted above, Section 72 ofthe Reorganisation ActNo.28of 2000 envisages that "the Central Govenuaent may, give suchdiit;cdous lo thc Sftiic Cfovci-uiucut of Madhya Piadcsh aud IhcState Govemmeiit of Chliattisgarh as may appear to it to benecessaiy for the purpose of giving effect to fhe foregoing provisionsof fhis Part and the State Govenunents stiaU comply wifh such directions".Therefore, the above guideluies issued by fhe CentralGovcnuncnt and thc Advisoiy Committcc constituted uiidcr Scctioa71 of the Reorgamsation Act, 2000, and the guidelines issued by theReorganisation CeU ia our cousidered opinion arc issued under theabove Section.Therefore, fhese are statutoiy guideliiies aad fheyhave statutoi;r force aad any action taken ia accordance wifh theseguidcliacs caiuiot bc assailcd on fhc groiind that thcsc guidclincsare not enforceable.For fhis view, we are fortified by the judgmentof the Apex Court in the case of The State of Maharashtra andanother vs. Chaadrakaat Anaat Kulkarni aad others reported iaAIR 1981 Supreme Court 1990 (Pam 9 & 10).

ARTICLB Z35 OF THE CONSTUTITON OF IBDIA

12. Learncd couuscl for fhe petitioners argued fhat it is aa adniitted factthat before issuaace of final aUocatioii order the two High Courtswere not consulted. Only HonTile the ChiefJustices considered aadprepared fhe Ust and gave their advice to fhe Ccntral Goverrunent.As per Article 235 of the Constitution of India, powers of controlover district courts aud courts subordinate fhereto includiug fheposting and proinotions are vested in the High Court.Therefore,beforesendiagfhelistforfinalaUocationtofheCenta-alGovermnent, the Ust ou^ht to have been approved by FuU Court oftwo H^h Courts aad ia absence fhereof, the final aUocation is not iacoulbiiuily wilh Articlc 235 of (lic Coustilutiou of ludia. Thcicfoi'c,fhe aUocation suflFeis from Ulegalily beiag contraiy to Ardcle 235 offhe Constitution of India.

13. The leamed couiiscl for fhc petitioncr placcd rcliancc on thcfoltowing judgments: -

a. Madan Mohan Choudhary vs. State of Bihar and othersreported in (1999) 3 SCC 396.

b. Gauhati High Court and another vs. Kuldhar PIiukanreported m AIR 2002 SC 1589.

c, Brtjmolian Lal vs. Unlon of India reported m 2002 (S) SCC1.

d. Tejpal vs. State of U.P. and another reported ia AIR 1986./••SC 1814.

L--

14.0n fhe other haad, learaed counsel for the Union of India; leamedcounsel tbr the Higli Coiuts; leamed counsel tbr respondents 6 & 7;and also leamed coiuisel for the State Govenunents submitted thatlooking to the special aad peculiar circumstaiices and being aaextra-ordinaiy event by virtue of Ardcle 4 of fhe Constitution, actionwas required to be taken uiider fhe special provisions ofAct No.28of 2000 (M.P. Reorgarusation Act, 2000) and under this Act, theC^ntral Goverruaent was the only conipetent authorily who wasentitied to take fiTi.il decision. Therefore, ia fhis case, Article 235 ofthe Constitution of India is not appUcable, as this Act has beenenacted under Articles 2, 3 & 4of the Constitution of India.Inordertocanyoutandgiveeflecttofheprovisionsof ttieReoi^anisation Act, suppleBiental aud incidental provisions of lawas enacted by fheParUament under Ardcles 3 aud 4 of ffaeConstitution of India have been niade. In this l^ht siiiular questioncame up for consideration before fhe Himachal Pradesh Higli Courtm the matter of Slui H.D. Kainthala, Chief Judiclal Maglstratevs. The Uaion of India and others reported in 1974 (1) S.L.R. 8,iu which fhe H^h Court of Hitaachal Pradesh while interpretiiigSection 82 ofthe Punjab Reorganisation Act, 1966, held that, thefuiictionof accom.plishingfhedivisionanduitegranonoftheservices,whichincludestheequation of posts and the fixation of seniorily, is afiuiction entirely entrusted to the Cential GovemmLentby Section 82 of the Ptmjab Reoi^aaisationAct andthat it is not open to fhis Court to sit la judguient onfhe luerils of a decision of fhe Centa-al Govenunent iaexercise of that function.decision of fhe CentralGoverrunent under Section 82 can be assaUed eitheron thc ground that it is iu cxccss of fhc powcrsconlerred by fhe statue or is vitiated by rnala fides aadpronipted by extauueous considerations".

It was furfher held that,

"Reorganisation of States—CentialGoverruiientwhefhercoiapetent to fix seniorily of Judicial OfBcers as thisfiuiction is cntrusted to High Court undcr Articlcs 233 to235—Held,Articles 233 to 235 are not appUcable.'

whefher

In that judgment it was further held that, "fhe Centoral Govenuneut has been entrusted with thepower to determiae fhe equation of posts and fix theseniority of aU the Judicial Officers, be they atlotted fmm.

/'

Punjabalready serviag ni Himachal Pradesh.ThePuujabRe-oi^aaisatiouActcanbetracedtotheprovisions of Arti.de 3 aud Article 4 of fh.e Constitution.Article 3 (a) einpowers ParliaDient to enact a law formiuga new State by separation of territoiy fioin any State.Uudcr Atticlc 3 (b) tlic law cau piuvidc fur iuci'casiug thcarea of any State.The Rxplanation to Article 3 riefinesthe expresslou 'State' used iu clauses (a) and (b) ofArticle3 as iucludiag a Union Territory.Ardcle 4 provides thata law referredto in Ardcle3shaU contam suchprovisions for the amendment of the Pirst Schedule andfhe Fourth Schedule as inay be necessaiy to give effect tothe provisions of fhe law aud inav also contaia suchsupplementaiy, uicidental aad consequential provisionsas Parliament may deem. necessary.The Punjab Re-oi^anisati.on Act is aa example of such legislation.Section 95 of the Act declares that the provisions of thatActshatlhaveeffectnotwifhstaadingauyfhiaginconsistent therewifh contaiaed in aay other law. Therecan be no dispute fhen that tf there is aay clash betweenUicPuujabRe-oi^aiusialiouAcl audtlicHuuachalPradesh (C^iurts) Order, 1948, the latter niust yield to theformes".

Thcrcforc, it was hcld fhat Articlcs 233 to 235 of fh.c Constitutioncaiuiot be appUcd in ftie present casc.

15,Agam, in fhe matter of Bhiinaji Anna Sao Patil and another vs.The Re^strar, H4?i Court of Mysore, Baagalore aad anotherreported in AIR 1966 Mysore 81, it was held by a Division Bench oftt»atCourt that, "Serva&ts of High Court of existing State aUotted toservice of High Court of new State —Power tointegratethem.uitosemceof newH^hCoiirtiucluding thepower to equate fhe posts for fhepurpose Uelongs exclusively to Central Govenunent —Orders passed by Chief Justice in fhat regard aremerely of piovteional character —Hence Registrar ofthc High Court is bound to submit all papcrs aad'representations by the aBected persons to CeiitralGovermaent for decision —Power given to Ceutralgovemmeut under Sectiou 115, States ReorganisationAct is a special power which ovemdes tlie power givento Chief Justice under Article 229 of fhe Coustitutionoflndia'.

16. In the case ofV.B. Raju vs. State of Gujarat aad another reported inAJR1980Supa-emeCourt2075,theprovisionsofReorgaaisation Act aad fhe affect of law made uader Ardcles 3 & 4of theConstitution of India vis-a-visArticle 222(1)of theConstitution of India were considered by the Hon'ble Apex Court. In v^~

fhis niatter, fhe question arose befoi-e the Apex Court that if aiiyHigh Court Judge is aUotted to a newly created High Court underthe provisions of Boinbay Reorganisation Act, whether fhe Judgewho was aUocated froin Boiabay High Court tonevvly createdGujarat High Court was entitled for conipensatoiy allowaiice iti-.terms of Article 222 (1) of the Constitution of India.The Hon'ble Apex Court beld that, "Articles 3 aad 4 of fhe Constitution deal with a specialsituation and so long as a provision of law proniulgatedbyParliamciit canbe considcrcdassuppleincntal,tncidental or consequential to tlie formation of a newStatc it would bc enforceable even fhough it uiightamouiit to an ainendment of certain provisions of theConstitution.The provision contaiaed ia Section 29 ofthe Act is clearly consequential to the formation of fheState of Gujarat aad the establishiueiit of a High Coiutfor it.It was for the purpose of settiag up that HighCoiut that Judges then serving in the Boinbay HighCourt were, so to say, "aUotted" to fhe High Court ofGujarat; and although fheir appoiatm.ent to the GujaratHigh Court may partake of some of the characteristics ofa traasfer, we do not fbitLk fh.at fhey can be said to havebeen traiisferred froin the Boinbav High Court to theGujarat High Court wifhin. the ineaoiag ofArticte 222 (1)of fhc Constitution.Thc cntitleincnt to coitipcnsatory'allowance under Ardcle 222 (2) is conditional upon fheJudgc beuig "so traasferred", that is, traasferred; asenvisaged by Article 222 (1).Smce the appeUaiit was'"atlotted" to the Gujarat High Court on the aetting up ofthatCourt,hewilluotbeentiUedtoclaimthecoinpensatoiy allowaiice, .Therefore, ia view ofthe above decisions and ui view of Section 85 of\.the M.P. Reoi^aaisation Act, 2000 (Act No.28 of 2000), that tlieprovisions of fhis Act shall have effect notwitfastan.ding an^'thinguiconsistent ffaerewifh contained in any ofher law, lookiug to fheprovisions ofPart-ViII oftiie Reorgaaisation Act (Act No.28 of 2000)aad provisions ofSection. 68 offhis Act, fhe provisions ofPart-VIII ofthe Act and guidelincs issued undcr Section 72 of the Act areuicidental aad supplemental to the scheme of the Reorgaiusatiou[of]States.The same are enacted for fhe purpose of giviag effect to tliereorgaaisation scheineaadtoprotecttheinterest offhosepublic servaatswhoareaffectedbythereorgaiiisation.Inordcr to render justicc to tlie senricc personnel atlotted to thcnewStateand to avoidaa.ypossibiUtyoftheirbetn^discriminatedagamst,it was thought necessary to entrust ftie, v .^'

v

.^'

poroersnientioned iaSection 68 oftbeM.P. Reorgatusation Act,2000, to the Ceatral Govenunent.The power conferred upon fheCentral Govemincnt was a special power as the entire affairs ofreorgaaisation of the State was an extra-ordinan.- event bv virtue ofArUcle 4 of fhe Constitution of India.It was designed to meetspecial need in the special circi-umstaaces. Therefore, luatters falluijwithin the scope of Section 68, fhe power given to tlie CentralGoyertuncnt is exclusivc aad has ovemding efFect on Article 162 offhe Constitution of India and ftiat given to flie Govemor underAfti.de 309 of the Constitution or that given to the High Court uaderArticle 235 offhe Coustitution.

IS.Moreover, the validity of Sectioas 68& 85 has aot t»eenchaUengedinthesepetitions.Therefore,thepetitionerscaauotchallengetheofCeatralGovernaaeatforpowersaUocating the Judicial Ofiicers witliout chaUenging the visu.s ofSectlons 68 & 85 ofthe M.P. Reorganlsation Act, 2000 (No.28 of

19. In vicw of thc cxtra ordinaiy cvcnt by virtuc of .Articlc 4 of thcConstitution of India, aad tn view of the scheme under Section 68 offhe M.P. Reorganisation Act, 2000, and also inview ofSection 85 ofthe M.P. Reorganisation Act, 2000, fhe judgiaents cited by theleamed counsel for fhe petitioner are not applicable in the presentcase, because ia aU fhcsc cases Article 235 of the Constitution ofIndia was mterpreted in the ordiaaiy course and none ofthese casesdeals with the "situation arisirig out of the extra-ordinaiy eventunder fhe State Reorgaaisation, as has been niennoned earUer tliatin view of Section 85 of £he M.P. Reorganisation Act, 2000, theprovisions of this Act shall have efFcct aotwifh.standmg aaythia^mconsisteat therewith contained ia any ofher law.

SCOPE, MODE AND MANNER OF ALLOCATION UNDERSECTION 68 OP THB M.P. REORGANISATION ACT, 2000

20. Leamed counsel for the petitioner argued fliat as per the scbeme ofSection 68 of tlie M.P. Reorgaaisation Act, 2000, (No.28 of 2000)provisional aUocation was to be laade only once and once fhe provisional aUocation was uiade, fhereafter, the Ceattal Govenunentwas not coinpctent to inakc furfhcr provisional allocation as pcr thcprovisions of Section 68.He furfher subinitted that proviso to sub-sectiou (1) of Section 68 is ia fact proviso to the whole Section, itgoveras[the][ whole][ Section][ and][ it][ cannot][ be][ interpreted][ fhat][ this]proviso is to sub-section (1) ofSection 68 as this pro\dso speaks thatno dircction shall bc issucd undcr fhis Scctioa aftcr thc cxpiry of aperiod of one year from the appointed day.The word 'this Section'has been used iu this proviso aad the word 'sub-section' has notbeen used.Moreover, sub-section (2) further ruakes it clear whichstarts wifh the words 'as soon as may be after fhe appoiated day,fhc Ccntral Govcrruncnt shall, by gcncral ordcr or spccial ordcr,determine the successor State to which eveiy person referred to in'l'hereforc,sub-section (1) shall be finally allotted for service'. thewords as SOOTI as of siih-sectioTi (2) makes it. clear tTiat once theprovisional list was issued, the Central Govenunent was required toissuc thc final allocation list fhat is why a ridcr of onc ycar was puton this Section.To support his ai^uinent, fhe learued counsel forthe petitioner further subuutted that the tiine schedule fixed underPart-VIII of thc final giiidelines issiied by fhe Central Govemincnton21st/22ndDecember,2000,cleartyshowsfliataftertheconstitution of fhc State Advisoiy Com-Diittcc, thc Committec was•-required to distribute ffae posts for the successor States within. oneinonth froin the date of its constitution aud thereafter, withia DiaeinoTiths, the Ccntral Govemnient was rEiqiiircd to notity the final listfor infonnation of all concemed after foUowing fhe process as givenin. thc tiTnc schcdulc.^'

21. In support of his ai^uments, tearued counsel for the petitionerrelied upon fhe foUowing cases ofthe Hon'ble Apex Courfc -

b. HarbhajaB Sin^i vs. Press council of Ittdia aad othersreported iu (2002) 3 Supreme Court Cases 722.

c. J.K. Industries Ltd. and others vs. Chief Inspectoi ofFactorlesfi» BoUersand othersreportedin.(1996}6Supreine Court Cases 665.

d. Coinmissioaa- of Income-tas;, U.P. vs. Jaganaatli MahadeoPrasad reported in AIR 1969 Supreme Court 209.

e. Mallawwa (Smt.) and others vs. Oriental Insurance Co.Ltd. aad othCTS rcported m (1999) 1 Supreme Court Cases403.

22. On fhe ofher hand, leacned counsel appearing on behalf of all therespondents subinitted fhat readiug of Section 68 of fhe M.P,Reorganisatiou Act, as awhole, clearly shows fhat tiU one year fi-oiathe appointed day, the Central Goverrunent was witbiu its right,accordiag to the provisions of sub-section (1) read with proviso tothat sub-section, to issue as many as provisional lists by generial orspecial order for aUocating the pcrsons to seive provisionaUy iucoimection with the affairs offhe State of CtLhatdsgarh. As far asthe question of final aUocation was concemed, no liiaitation wasprescribed.The words 'as soon as' used in sub-section (2) cannotbe interpreted that in all probabilily the final Ust was to be issuedbefore one year aad final Ust issued after one year was withoutauthority and fherefore, itcaauot be giveu effect to.

23. In the case ofHarbhajan Singh (suprc^, white mterpretmgSection 6

(7) offhe Press Couucil Act, 1978, tbe Hon'ble Apcx Coui-t hcld that,'Literal mfaning —Graminatical aad plam ineaningshould be preferred -tmless fhat leads to absurdily oranoiaalyorualessmaterialavaUablejustifiesadiEFerent meatiing —In absence of aay material, av^different meaning caunot beascribedby traciaghistoiy of the legislation and attributing object andlegislative intendincnt which suits court's own view.Where right to be appoiated is conferred by the statue,aay uiel%ibili1y cntailing a bar OQ bein^ appoiutedshould be clearty provided ia absence of which suchbar cannot be read iato the provision on the basis ofassiuned iatention."

24.1n other decision in the case of J.K. Industries Ltd. and others (sufM'c^, the Hon'ble Apex court while interpreting proviso (u) toSection 2 (n) ofthe Factories Act, 1948, obseryed that, "A proviso to a provision m a statue has severalfunctions aad wlule uiterpretmg a provision of ttiestatuc, thc Court is rcquircd to carcfuUy scrutioizcaad find out ttie real object offhe proviso appeuded tothatprovision.It is aot a proper rule of interpretationof a proviso that the enacting part or the main part ofthe section be construed fiist wifhout reference[to][ the]proviso and if the saine is found to be ambiguous onlyfhen rccourse niay be had to examiae fhe proviso. On the other haad au accepted rule of interpretation isthat a section andtheprovisothereto must beconstrued as a whole, each pordon fhrowing light, ifneed be, on fhe rest.A proviso is normaUy used toreinove special cases flroin the general euactiaent andpiuviuc fur tliciu spcciaUy.A piuviso qualifics thcgcneralily of the maiTi enactment liy pmviding anexception aad taking out fi'om. the uaain provislon, apordon, wtuch, but for fhe proviso would be a part ofthe main provision.A proviso laust, therefore, beconsideicd in relation to fhe principal matter to whichit staads as a proviso. A proviso should not be read asit' providiag soniething by way of addttion to the maiaprovision which is foreign to fhe niaia provision itself.In soine cases, a proviso laay be aa exception to themaia provision though it caanot be inconsistent withwhat is expressed ia the main provision and if it is soit would be ultra vires of the inain provision aadstruck down."

25. In the case of Commlssioaer of Income-tax (supvw), fhe Hon'bleApex Court while interpretmg the proviso to Section 24 (1) of the Incoine-tax Act, 1922, observed that,

"Where fhe language is quite clear and no ofher view ispossible it is futile to go iato the quesnon whefher theproviso to Section 24 (1) operates as a substaativepiuvisiou or ouly by way ofau excepliou tu Sec'iiou 24

26. Iu the case of Mallawwa (Smt.) aad others (supraj, the Hon'ble Apex Court held fhat, "Proviso tbough appcariag aftcr sub-scction (l) (b) (ii)of Section 95 of ttie Motor Vehicles Act, 1939, is aproviso to sub-sectioa (1) (b) 0 after araendnient"

27. In ffae ligbt of fhe above principles laid down by fhe Hon'ble ApexCourt, in thc first instaacc, plain m.caning should bc prcfcrrcd,-uiiless that leads to absurdity or axiomaly or unless inateriai?-availabie justifies a different meaning, the Court has to carefullySRn]tini7£ in order to find tTic object. of the proviso appcnded tn t1icprovision, ifwe look into fhe provisions ofSection 68, as extractedin previous part oftbis order, shows that as per sub-section (1), theCenta-al Goveirunent was required to issue immedjately before thcappointed day, provlsional list of the persous to serve in connectionwith the affairs ofthc Statf of ChTiattisgarh and iinlcss a person hya general or special order of the Central Govertunent was allotted tothe State of Chhattisgarh was required to provisionally contmue to ^

serve in connection with fhe affairs of fhe State of Madhya Pradesh.As pcr thc proviso for issuancc of thc gcncral or spccial ordcr, fhcouter luuit was fixed up to one year i.e. up to one year froia. theappoiuted day fhe Central Govenunent was withia its right to issueprovisional Ust aud thereafijer, as per sub-section (2) of Section 68,~fhe Central Govenmient was required to determine by general orspccial ordcr fhc succcssor Statcs to which cvciy pcrson rcfcrrcd toin sub-section (1) shall be finaUy aUotted for service aad the datewith eflFect from which sucli allocation shall take efFect or deemed tohave taken effect.Sub-section (3) of Section 68 lays down thatevei^1' person who is finaUy atlotted under fhe provisions of sub-scction (2) to a succcssor State shaU, if hc is not alrcady scrvingfh.ereui be made avaiiable for serviug iu fhe successor State fixiinsuch date as inay be agreed upon between the Oovenunentsconcemcd or in defaiilt ofsiich agnieinent, as niay he determined hythe Central Govenunent.

28. Aspersub-sections(1)&(2)ofSection68of theM.P.Reoi^aaisation Act, 2000, fhe C-en.tral Govenunent was enipoweredto issue as iiiany as orders, by way of general or special order, ofallocation of persons to successor States at the provisional stageand at fisal stage looking to ground icaUties and requireinents ofpersons bv ttie successorStates in order to ineet fhe adininistrati.veexigencies aud also to ensiire that aU the working persons areallocated to the either of fhe successor States.

29. Therefore, conibined readiag of these three sub-sections inakes it•yclear fhat initinlly the Ccntral Goveram.ent was required to issue aprovisional Ust or Usts of persons aad such provMional lists bygcuci-al or spccial uixlci-s wcit; lo bc issucd wilhiu ouc ycai' fium. theappointed day. The word 'as soon as' denotes that eveu fhe final Ustafiter coiiipleting fhe whole exercise could have beeu issued wifhiuone year, but it was not niandatoiy that it shouM have been issuedin aU probabilily within one year after foUowing the prescnbedpiucedurt;.Evcu if il was uul issucd withiu ouc ycai", thc CcutfsilGovenunent was not prohibited to issue the same after expuy ofonevear as no outer lunit was fixed for issuauce of Ust of finalaUocation.

30. In Bih.ar Reorganisatiou Act, 2000, similar proviso was added[to]sub-section(1)ot' Section' 72,wliichdeals withprovisionalatlocation.A smular proviso was also appended to Section 73 (1) offhe Uttar Pradesh Reorganisation Act, 2000, ia wtuch provisionsrelating to other services was provided in Section 73 of the Act aadafter sub-section (1), a proviso that eveiy drrection uuder this sub-sectiou issued after the expiry of a period of one year fi-om fheappouited day shaU be issued with consultation of the Govemors ofsuccessor States,So, in all fhe fhree Acts, at ftie same time, asitmlar proviso was appended to sub-section which deals wifhprovisional atlocation.The intention behind this proviso was thatissuaace of the provisioDfll allocation Ust of the euiployees shoiild berestricted up to one year only aad no siich list is atlowed to beissued beyond one year.The provisional aUocation is always inadein order to nieet the urgent adnunistrative exigencies and in order toensure smooth fiinctioning of administranon ia the newly createdState.By any stretch of iiaagiaation, it canaot be interpreted fhatthe iutention of the ParUainent behiud adding ttus proviso was toadd fhis proviso to whole section aad to ensure that final attocationshould be made withia one year.Therefore, fhe arguments of thetearued Senior Couasel appeariug on behalf of the petitioner fhat-Khe proviso in tact is a proviso to the whole section and is not tosub-section (1), is withoiit force, Sl.Even ofherwise, if we look iato the scheine under which fheAdvisoiy Coininittee was required to uitdei^o a process in order tofijnaUze ftie Ust, it was itself such a lengfhy procedure, which wasnot feasible for the Central Gtovenuuent to issue final Ust wifhia aycai' fiuiu Uic appoiuiicd day.Evcu ifwc louk iuto the tiiuc schcdulclaid doivn by the Central Govenunent, clause (1) ofwhich says thatthe State Advisoiy Committee wiU. finalize tiie distribution of postsfor fhe successor States wifhiu one inonth froin the date of theconstitution of fhe Advisoiy CoTnmittee and tttereafler, further stepsas suggcsted iu thc schciuc wcit; tu bc takeu fi;uiu 01.01.2001, fi-ouithis date, it was not possible for fhe Central Govenunent to issuefinal aUocation before 01.11.2001.It is true that ia the proviso tosub-section (1) of Section 68 ofthe M.P. Reoi^anisation Act, 2000, fhe word ''section" has been used iastead ofthe word "sub-section".But in vicw of thc abovc discussion and looking to fhc schcinc ofSection 68 of the Act and tfae tiine schedule prepared under theguidelm.es for preparation of fhe final list, only one interpretationcaa be given to the word 'section" that it has been used withrefeicnce to sub-sectiou (1) of Section 68 of fhe Act, therefore, theword '"scction" has to bc uiterprcted as ''sub-scction.".

ALLOCATION OF MR. B.K. SHRIVASTAVA 8s MR. V.K. SHRIVASTAVATO THE STATB OF CHHATTISGARH AKD MR. A.K. TIWAR! TO THE'TSTATB OF MADHYA PRADBSH

32. The leamed senior counsel for the petitfoner further aiyied that Mr.A.K. Tiwari was provisionatly atlocated to the State of Chliattisgarhw.e.f, let November, 2000, and only oue post of Above Super TuueScale was atlotted to ftie State of ClLhattisgarh, therefore, no otherperson canyuig Above Super Time Scale could have been aUocatedto the State of Chhatdsgarh as there was only one post available intbe State of Chliattisgarh which was surrendered io. favour ofChliattisgarh vide Anuexure P-4 and tUl the final aUocatiou dated07.12.2001, no ofher post ia the Above Super Time Scale wascreated by the State of CtLhatdsgarh.He further submitted that Mr.D.S. Jain was also graiited Above Super Time Scale on 10.08.2001aad at fhe time of final allocation he was also canyiag fhe AboveSuper Tiuic Scalc.Thciefoic, thc aUucatLou of icspoudculs 6 & 7was not according to the guideUnes and posts aUocated to the Stateof Chhatdsgarh.

f'

33.0n the othcr hand, leamcd couiisel for thc respondents subinittedthat in the State of Madhya Hradesh as on 31.10.2000, elevenOfficers werf: working in the Above Siiper Tinie Scale; six againstsauctioned cadic posts ia fhe M.P. Higher Judicial Service aad[fiye]on dcputaUon basis on cx-cadrc posts tn fhc Abovc Supcr TimcScale.Therefore, in all eleven Officcrs were workiag ia thc AboveSuper 'l'ims Scale. As per Sectiou 68 ofthe M.F. Keoigaaisation Act,3000, all thc officcrs working in fhc Above SiipcrTime Scatewere tobe atlotted to successor States.

34. As appears froia fhe additional reply filed on behalf of respondentNo.5 i.c. Union of India at pagc 230 of thc papcr book whcn thcletter dated11.09.2001 along wifh the Ust showiag the postsatlocated (Anuexure R-5/1) fix>m fhe Registrar General of M.P. HighCourt was examined, it was seen that as against total cadre•-strength of 988, there were 1051 Judicial Officers on roU for fiaalatloeatioa.Thcrcforc,aquciywasraiscdbyfhcCcntralQovenuncnt to fhe High Court of M.P. seeking clarification as towtiy there were excess number of Officers on roll compared to thesanctionedstrengfh; Whefher fhe broad principle of aUocationdecidedbytheH^hCourtofM.P.&Chhattisgarh;andrcprcscntations fi'oin fhc Judicial Officcrs had bccn considcrcd,Areply was sent by the Registrar Ocneral, M.P. High Court that lai^enuiaber of of&cers on roit arc worfcmg iu other Departments ondepntation and hence, the variatioTi in the sanctioTied strength andfhe on-roll strengfh; aad the basis of aUocation has been fhenumbcr of Courts actuaUy functioniag ia scvcn Districts formiag fhcState of Chliattisgarh aiid on fhe basis of the needs of fhe newlyconstituted Chhattisgarh High Court.l<*urther, itwas iatunated thatbroadly spcaking, thc giiidelincs of the Ccntral GovRmincTit. asleceived fioin the State Gtovenunent have been foUowed namely,factors ]ikc witluigacss of thc Judicial Of&ccrs, fhcir honic district...aid factuin of husband aad wife bciag ia Goverruncnt service werctaken iato consideration.The decisions for final allocation haveIIRRTItakeTionlyaftcrconsiderationof reprRsentationsftiomindividual Officers.

•r,"

•r,"

35. Therefore, leamed couiisel for the respondents submitted fhat eventhough uutiaBy at the tiine of provisional aUocAtion one post wasaUotted to the State of Chliattisgarh takiag iato consideration sixsauctioned su-engtti, but tfae actual working strengfh offhe OfSeersin the Above Super Time Scale was 11.Theicfore, at the time ofnialdne final aUocation. it was decided to aflot two Ofi&cers to theState of Chliattisgarh, keepmg iu mind 26.23% ratio offhe Offieersto be allotted to fhe State of Chliattisgarh.

36. In the light of the above submissions made by the leamed counselfor fhe respondents, ifwe look iuto sub-section (3) ofSection 68 of [r) T^"

tbe M.P. Reoiganisation Act, 2000, a plajn readiag ofit niaJies clearfhat if a pcrsou who was to bc fiiiaUy atlottcd undcr fhc provisionsof sub-section (2) to a successor State, if he was not aiready sersrangfhereia was to be inade available for servuig in fhe successor Statefirom such date as iiiay be agreed upon between fhe Govemiuentsconcemed.Sub-section (3) en\7isages that even ifaccording to theprovisioiial[aUocation][ sonic][ Officcr][ was][ workiag][ ia][ onc][ State,][ hc]could also be atlotted to ofher State iu final Ust and he was to bemade available to the successor State as agreed upon betweeu bythe two Goveminents.Therefore, it was not necessaiy for fheCentral Goverruaent to finally atlocate fh.e persons in fh.e satue Stateia which thcy wcrc workhig accordiag to thc provisional allocatmn.In fixial allocation, the Central Govenuacnt was entttled to changethe successor State of aay person fix>ra the State ia wtaich he wasprovisioTially allotted, of cmirse, hased on the giiidelines issiied bythe Central Govermnent. Therefore, the atlocatfon ofMr. A.K. Tiwariback to thc State of Madhya Pradcsh ."aTinnt bc said to bc inviolation of sub-sections (2) or (3) of Section 68 of the M.P.Keoigaaisation Act, 2000.

37.1fwe look into sub-clause (5) ofpart IV ofguidelines dated 21rt/22ndDecember, 2000, it lays down fhat State service einployees retiriugwithia two years from fhe appoiated day should not be covered Ibrfinal aUocation to a siiccessor State other thaa which they ha-vebeen semng before fhe appoiated day. Mr. A.K. Tiwariwas workingbefore fhe appointed day ia fhe State of M.P,i.e. before18t- - Noveiaber, 2000 and he was to retire ou conipletion ofone year finmthe appoiated day. Therefore, as per fhis clause, he could not havebeen aUotted to the siiccessor State of Chhattisgarh. Therefore, theCentral Govenunent has not coiniaitted any illegalily ia atlocatinjMr, A.K. Tiwari to fhe State of M.P.Even otheriffise, as mentionedia previous part of thisorder,Mr.A.K.Tiwari him.self on07.09.2001, gave application to the High Court ofM.P. chauging hisoption fix)in Chliattisgarh to M.P. aad thatwas acceded by bofh fheHonTile Chief Justices aad his nanie was sent for final allocation. inthe State of M.P.Tlierefore, white makuig fhe final allocation, fheaUocation of Mr. A.K. Tiwari to the State of Chliattisgarh could not r~-<-.

have been considered aad righUy that was not consideicd by theCcntral Oovcnuncnt.

38. Now, commg to the question that only one post ofAbove SiiperTimeScale was allotted to the State of Chlia.ttisgarh, then how tn?oOfSccrs carrymg the Above Super Tim.c Scale could have beenatlocated to the State of CIihatdsgarh, as mentioned above, one postwas aUotted to ttie State of Chliattisgarli taking into considerationthe fact of saactioned strength of six posts in the Above Siiper Time.Scale, whereas, eleven Of&cers were already workiag iu fhe State ofM.P. ia fhe Above Super Time Scale. Sub-clause (2) of Part-III offheguidelinesdated21Bt/22udDecember,2000envisages that atentative final aUocation list of aU ttie einployees was to be tiaalizedfor either of thje successor States. As per sub-claiise (1) of Part-IV ofthe above guidelines, final aUocation of eiaployees was to be basedon distribution of posts to be finalized by the State AdvisoryCoiiunittee.In the present case, eleven Officers in Above SuperTime Scale were workmg in ftie State of M.P, ftiat is whv it wasdecided tfaat two Of&cers of Above Super Time Scale should be sentto the State of Cbliattisgarh t6 mnmtnm 26.23% ratio to be allottedto the State of Chliattisgarh.As mentioned above, as against sixsanctioned posts eleven Of&cers were working because five Offieersm the Above Super Tim.eScale were working on deputation.There.fore, in conformity of the mandate issiied by the CentralGovenuaent through fhe above giudelines in sub-clause (2) of Part-IV, flic fiiial aUocation of atl einployees should be such fhat it isevenly distributed in respect of age aud seniority so as to makecoinposite and balanced cadre ia fhe successor States.This isuecessary to ensiire that proinotional prospects of individuals areneifheruudulyacceleratednorsubstantiaUyreducediathesuccessor States to which they are finally allocated. Apart froin fhatclause (4) ofpart-1 ofguidelmes dated 22.03.2001 (Aimexure P-10)lays down that if field posts are niore or less fhao. 26.23% ratio iathe successor States, in exceptional cases, ex-cadre posts can alsobe distributed accordiag to fhe ratio.Sub-clause (19) of fhe aboveguideliaes iurther envisagcs fhat for allocation, fhe advice offhe twoHon'ble Chief Jusuces will be taken separately.Thercforc, whilemaking fhe fuial atlocation, fhe relevaat factor before the two,

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Hon'ble Chief Justices was to distribute tbe OfScers evenly and alsoto takc iato considcration that ia cifhcr of succcssor States thcproiuotional prospects of iadividuals are neifher unduly acceleiateduor substaittiaUy reduced to wbich fhey are fixiatty aUocated.Therefore, out of eleven OfBcers workiag ia fhe Above Super TimeScalc two Of&cers were aUocated to fhe State of Chliattisgarh.Morcovcr, sub-clausc (9) of Part-IV of fhc abovc guidclm.es laysdown that ''notwifhstan.din.g thc giudcliaes iudicated above, fhcState Advisory Conunittee would be at Uberfy to consider anyprinciple/factor which may beconie crucial in deddiag the aUocationof einployees to fhe successor States".The coiabined reading ofsub-clauscs (2) & (9) of Part-IV inakcs it clcar fhat whUc advisiugfhe Central Govemment, the pruiciplcs and relevaut factor beforethe Hon'ble two CluefJustices were how to take care of both theseclaiises in onler tn inake eqiial distrihiition ofall tTie clRVRn OfRcersof Above Super Time Scale,so fhat pToinotional prospects ofiudividuals arc ncifhcr uaduly accclcrated nor substantiaUy rcduccdia the succcssor States. That is why, in their wisdoin, they adoptedthe above procedure to allot two Of&cers carrying the Above SuperTiine Scate to the siiccessor State ofdihattisgarh.

39. Now, comiag to fhe question that as to how two Officers could have. been accoituuodated ia the State ofCtihattlsgarh iu th.e AboveSuperTinie Scale, iu the State of M,P. since five OfScers were workiug on.deputation out ofwhich one oa fhe post of Principal Law Seeretaiyand one on fhe post of Registrar General were workiog and the payscale admissible to the Ofl&cers posted on these posts was the sameas those Ofi&cers canyuig or drawiag at the tuue of ftieir posting onthe.se posts.So is the case of State of Chhattisgarh also.TheRegistrar General pf this High Court could have beea posted whowas canying ftie Above Super Time Scale aad fhat beiag ao. ex-cadre post, ons OfficerofAbove Super Tuue Scale coiud have beenacconuuodated as Registrar Geneial aad aaofher OfBcer could havebeen posted m ftie saactioned aflocated sfa-engfh of cadre post.Apart fix>m this, as mentioned above, the post of Pruicipal LawSecretaiy was also available ia the State of Chltattisgarh and onthat post also aa OfBcer in fhe Pay Scale ofAbove SuperTime couldhave beenThat is how Mr. A.K. Tiwari, who was canyiag posted.

the Above Super Pay Scale, was ia fact posted ia fhe State ofChliattisgarh as Principal Law Sccrctaiy aud hc was canymg thcAbove Super Tim.e Scale tiU his retirement on the post of PrincipalLaw Secretajy of tlie State of Chhattisgarh.Therefore, even if onecadre post was surrendered in favour of the State of Chhatdsgarh,-two OfBcers canyiag Above Super Time Scale could have beenaUocated to thc State of Chliattisgarh sincc, thcsc two cx-cadrcposts wcre available for postiag ofAbove Super Time Scale Officer.

40. Now, coEung to fhe question fhat Mr. D.S. Jaia was granted AboveSuper Time Scale w.e.f. 10.08.2001, if iQ fhe final aUocation twuOfficers were to be aUocated on 07.12.2001 canyiag Above SuperTime Scale then respondents 6 & 7 could not have been aUocated inthe final Ust to tbe State of Chliattisgarh, as Mr, D.S. Jam. wasalready working ia the Above Super Time Scale ia the State ofCbliatdsgarh, we are of ffae opiaion that grant of Above Super TimeScale to Mr. D.S. Jaia. was not at aU legal for the reasons that on fhedate of graat of pay scale i.e, 10.08.2001, Mr. A.K. Tiwari wasalready canying Above Siiper Time Scale and Mr. B,K. Shrivastavawas already provisionaUy allocated to the State of Chliattisgarh ou07.06.2001 aad two OfBcers were to be allocated to the State ofChhattisgarh; when there were already two Officers workmg ia fhe.Above Super Time Scale flien Mr. D.S. Jam could not have beengranted Above Super Time Sca-le on 10.08.2001.Moreover, clause(c) of Part-5 of the guidelmes issued by the Central Govenunent on13th September, 2000, cnvisages fhat "aQ. recruitaients agam.stvacancies in the iuterim i.e. tiU issue of fhe final allocation ordersniay be kept iu abeyaace.Wherever, panels have been drawn butnot pubUshed they inay be kept ni abeyance tiU reoi^anisation ofStates is given effect to",Thereforc, in view of fhis clause alsoduring this interim period i.e, froia the appoiated day tUl fhe finalaUocation of the eiaployees no vacant posts were to be fiUed up andthose were to be kept ia abeyance.Therefore, ia vievv of fhisprovision also Mr. D.S, Jain ought not to have been granted fheAbove Super Tiine Scale, tiU the fiDal aUocation as per sub-sections(2) & (3) ofSection 68 offhe M.P. Reoi^aoisation Act, 2000, wbichenvisages that even the persons who were provisionaUy aUocatEd[to]

.

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vfi^

the successor State can also be changed to ofher successor State infinal aUocation.

41. Apart from the. above, perusal ofthe. record reveals that the graut ofAbove Super Tinie Scale to Mr. D.S. Jaui was not justified aadcorrect for fhe reason tfaat on 10.08.2001, fhe fhen RegistrarGeneral of the H^h Court placed a note before fhe conipeteutauthority tbr grant ofAbove SuperTime Scale to Mr. D.S. Jaia. TheRegistiy's proposal see.ktag approval froin the coinpetent authoritywifhout getting fhe same approved by FuU. Court of ChhattisgarhHigh Court was not legal.It is true fhat the nam.c of Mr. D.S. Jaiawas approved for grant of Above Super Ticae Scale by the MadhyaPiadesh High Court, but after tbrmation of fhe uew High Court iathe State of Chliattisgarh when Mr. D.S, Jain was allocatcd to the.State of Chhattisgarh, the Registiy ought to have placed his niatterbefore fhe FuU Court of Chhattisgarli H^h Coiut for grant ofAboveSuper Time Scale.The resolution of the Full Court of M.P. HighCourt could uot bave been inade basis Ibr grant of Above SuperTim.e Scale to Mr, D.S. Jam. in the newly created High Coiu-t ofChliatdsgarh.

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42. Even ofherwise, on 10.08.2001, no third postwas available for graatof Above Super Time Scale because, on fhat date Mr. A.K. Tiwariwas already workiag in the Above Super Time Scale aiid he wasworkiug as Pruicipal Scciclaiy (Law) iu thc Slatc of Chhallisgai-h uuex-cadre post aad Mr. B.K. Shrivastava who was already ia theAboveSuperTim.eScale wasalso .working intheStateof/•Chliattisgarh.Therefore,againstonecadrepostMr.B.K.Shrivastava was atoeady available in fhe Above Super Time Scalecalcgoiy.Whcu Mr. B.K. Shiivastava was ahcady aUocalcd lo llicState of Chliattisgarh on 07.06.2001, and he was drawiag AboveSuper Time Scale, therefore on 10.08.2001 there was no reasonbefore fhe Registiy to make a note that, 'At present m cadre, noJudicial OfScer is getting Above Super Time Scale.One post ofAbove Supcr Timc (iu cadit;) is lyiug vacaul.Thcrefure, Slui D.S.Jain may be considered for fhe grant of Above Super Time Scalefi-om fhe date of order."On fhat day, Mr. B,K. Shrivastava, wasdrawing Above Super Time Scale even though he wasworking as District Judge/O.S.D. fVigUance) ia fhe H^;h Court of Chliattisgarh.But that post was crcated by thc State Govcmiacnt vidc ordcrNo.4161/?TT021-cF/2001/®.'T.dated 10.08.2001 in the pay scale ofRs.18,000-22,400/- i.c. thc SupcrTimc Scidc. Thcrefore, Mr. B.K.Shrivastava's posting on this postwas notjustified, as this postwasnot canying the Above Super Tiine Pay Scale.Agamst the AboveSuper Tiaie Scale cadre post, Mr. B.K. Shrivastava was available.Therefore, fhe proposal ofthe Registiy for graat ofAbove SuperTuueScaleto Mr.D.S. Jaiu was uot justiucu.TIic Rcgisliy hadUTm.ecessarily placed the proposal before fhe Hon'ble coinpetentaufhority for grant of Above Super Time Scale to Mr. D.S. Jaiuwithout any post available.However, Mr. D.S. .Inin has retired aadgraat[of][ Above][ Super][ Titae][ Scale][ to][ Mr.][ D.S.][ Jain.][ has][ not][ been]chaUcugcd, thei'cfoic, wc aie uul givuig auy diicctiuu for withdiawalofthatbenefitto Mr. D.S. Jain.

43. Now, coiiung to fhe question of aUocation of respondents 6 & 7,respondent No.6 (Mr. B.K. Shrivastavaj imtiaUy gave his option forthe State of M.F., but later on before expiry ofprescribed tune forgiving[cTiange][ of][ option,][ he][ cTianged][ his][ option][ for][ e][ StatE:][ of]Chhattisgarh.Principles govemiag the aUocation were wiUiagness,honie district and factuni of husbaud & wife beiag in Goverrunent-service.Mr. B.K. Shrivastava gave his option for fhe State ofChhattisgarh.Theretbre, his final aUocation to the Slation ofChhattisgarli caTinot. be said to he in contraiy to the.giiirielines. Asfar 3's the case of Mr.V.K.Shrivastava, respondent No.7, isconcemed, it is admitted position that he is resident of District:Jagdalpur, State of Chliattisgarh.Even though, he had not givenaay option, but looking to his residence, Hon'ble flie two ChiefJustices werc within their right to advice the C-entral Govenunent toallocate Mr. V.K. Shrivastava to the State of Chhattisgarh.Sub-clause (b) of Part-4 of the guidelmes dated 13th September, 2000,envisages that it would be open for fhe Govenunent to post fhem.eifher provisionaUy or on final basis m. aay successor State in.adimnistrati.ve interest or m. theexigencies of pubUcservice.Moreover, on fhe basis of guidelines issued, uo other Officer ia fhe^

Above Super Tiuie Scale was available for final aUocation to theState of Chhattisgarh.

ABDICATION OF POWEI^

44. Leamed counsel for the petitioner further subnutted fhat ttieCentral Goverrunent abdicated its power vested ia it as per Section68 of the M.P. Reorganisation Act, 2000.The Central Govemmentleft it to the decision of the High Court for allocation of the Officersacnd uot applied its mind.Thercfore, it camiot be said to be validexercise of powers by the Central GovenLment.Wifh due regard tothe leamed counsel for fhe petttioner, fhere is no force in. fliisarguiueiit also, for the reason that as per the guidelmes prepared bythe Advisory Coininittee constituted under Section 71 of fhe M.P,Rcoi^arusation Act, ia its incetuig dated 23rd & 24th of Fcbruaiy,2001, vide sub-clause 3.6 of Part-3, fhe Advison7 Cbmmittee m. itswisdom after takmg into consideiation fhe specialty of serv'ices ofeinployees of fhe Legislature and High Court, decided to have theadvice of HonTile the Speakers of bofh fhe Asseinblies and Hon'blethe Chief Justices of botfa fhc High Courts,Evcn as per thciSuidelm.es issued by the Reorganisation Cetl on 22nd March, 2001,vide sub-clause (3) of Part-3 aad explanation of sub-clause (2) ofparts 3.3 & 3.6, the advice of HonT3le fhe Chief Justice was to besought in the aiatter of aflocation of Judicial Officers to thesuccessor Statcs.EvenHon'blc theLaw Minister of CentralGoverament wrote a letter to the HonTile Chief Mtnister of MadhvaPradesh(AnnexureR-3-9,page466of ttiepaperbook)on04.09.2000 to have the consultation with Hon'ble the ChiefJusticeof Madhya Pradesh High Court iu the inatter of aUocation ofjudicialofficcrs.In the Ught of fhese guidelincs, the advice of Hont)lc fhcChief Justices was sought.Hon'ble ttie two Chief Justices iu ftiemeeting held on 08.09.2001 considered the question ofaUocation ofJudicialOf&cerstosuccessorStatesandia the light ofguidelmes issued by fhe Cen.tral Goverruiieiit representations ofjudicial o.8iccri wcre also considcred and accordiagly,Miriuteswere preparedandin.thoseMiuutesflietwoHon'bleChiefJusticesgave theiradviceforaUocationofaU.fheJudicialOf&cersto the successor StatesiacludiagtheaUocationof/

<

respondents 6 & 7 in fhe Above Super Tirae Scale csiiEgory of HigherJudicial Scrvicccadrc.Thc advicc was scnt to thcCcutralGoveminent aad fhe Central Oovenunent consideruig the advicegiven by the two Hon'ble Chief Justices issued fhe final Ust ofaUocation dated 07.12.2001.

45. The aigument of fhe learaed counsel for the petitioner is withouttbrce Ibr fhe reason that ftie perusal ofthe additioual reply on behatt'of respondent No.5, Union of India, reveals that Mr. R,R. Prasad,Director (SR), Ministiy of Persortuel, Public Grievances & Pensions,Department of Personiiel & Tranung,GtoverDinent of India, onreceipt ofletter dated 11.09.2001 BTOIU fhe Registrar General ofM.P.H^h Court (Annexure R-5/1),made a queiy to the RegistrarGeneral that cadre strength is 988, whereas 1051 Of&cers axe. onroU for final aUocation, how this discrepancy has crept in.Theclarification was given by the High Court of M.P. that as largenumber of Officers are on deputation that is why inore niunber ofOfficers arc on roB. than ttie actual strengttt and the representationswe.re also considered by fhe two Hon'ble Chief Jiistiees while giviiigfhe advice for final allocation. It was fi.irther clarified that the basisof aUocation has been fhe nuniber of Courts actuaUy functioniiig iiiseven Districts formiag the State of Chhattisgarh aud on the basisi.. of the needs of ttie newly constituted Chliattisgarh H^h Court. It isalsoclarifiedthattheguidelinesreceivedfixiiatheCentralGovenunent have been foUovved namely, factors Uke wiMingness ofthe Judicial Officers, their home distnct and factmn ofhusband andwife being in Cjovenunent service were taken. into consideranon.Thereforc, it is ctear from this ftiat wlule giving the advice, fheHon'ble Chief Jiistice.s considered the guideluies issiied by theCentral Goverrmient, ground reaUti.es and requirements of fh.e newlycreated State as also fhe representations of ftie Of&ccrs aiid fhesame was sent to the Central Goverrunent for approval. The CentralGovenunentaftereonsideruigandseekmgclarificatiou,asinentioned above, fl~oin the Registrar Genexal issued fhe aUocationUstThereforc, it is incorrect to say that the decision was taken byfhe two Hon'ble Chief Justices ia respect of final allocation.Itcauuot be termed as that the final decision of aUocation was ofHonlle the Chief Justices and Central Govemment has not appUed/

its miiid.It is a diEFerent iiiatter that after considering fhe advicegivcn by fhc two Hon'blc Chicf Justiccs of thc bofh fhc High Courtsand after seeking clarification froni the Registrar General offhe M.P.H^h Court, the Centeal Govenunent accepted it iu to-to. It does notniean. that fhe Central Govenunent has aot appUed its nuud andabdicated its powers.

46. In ttus connection, as has been Iield by the HonT3le Apex Court inthe case of Union of India and another vs. P.K. Roy and othersreported ia AIR 1968 S.C. 8SO iu para 10, dispeUiag fhe arguinentof Mr. Aslioke Seu fhat fhe preparation of fhe provisional and finalgradation lists by fhe State Govenunent constituted a delegation ofpowers by fh.e Ceutral Govenunent, the Apex Court said that,

"fhere is no substence in fhis aigument.It is notdisputcd thal Uic pi'uvisioual aud the fiual gi-EidauuusUsts we.re prepared by the State Govenuneut on the.principles laid down by the Central Goveuuueut itselfsubject to one chauge m. the matter of determiniagseiuority and the provisional giadatiDn list was sent forapproval of fhe Central Govenuneut together wifhrcprcscntations madc by thc officcrs conccmcd forbeiag dealt wlth aad decided upon by fhe CentralGovemm.ent,The prmciple of fhe maxun 'delegatusnou potest delegare' has therefore s.o apptication to thepresent case.Delegation in its general sense does notitaply a parting with statutory powers by the authoritywtuch graats fhe detegation, but points rafher to theconferriag of au authority to do thiags which otfaerwisefhat adnimistrative authorily would have to do foritsetf.If, however, fhe adinitiistrative aufhority naaiedin the statae bas and retauis in its hands generalcontrol over the activities of the pei-son to whoin it hasentrusted ia part the exercise of its statutoiy powerraadth.econtrolexercisedbyfheadiiiinistiati.veauthority is of a substantial degree, therc is ia the eyeof law no 'dclcgation' at all.In ofhcr words, if astatutoiy authonty empowers a delegate to undertakepreparatoiy work and to take an JTiitia1 decision inmatters entrusted to it but retains in its own handsthe power to approve or disapprove the decision. after ithas been taken, fhe decision wffl be heM. to have beenvalidly inade if ffae degree of control luaintaiaed by theaufhoriiy iselose enough for the decision to beregarded as the authorily's own."

ITI t.hc light oftliR ahovejndgmeTit oftTie Hon'ble Apex Coiirt, in ttie.present case also, the authority and over a!l control was with theCentral Govenunent aad Central Govenunent sunply asked fh^

~l,

advice of both fhe Hon'ble Chief Justices and to prepare the list ofJudicial OfBccrs for allocation to thc two succcssor States bascd cnfhe guidelines issued by the Central Goverruncnt.As inentioned inthe guidelines aad looktug to the specialty of the services, theHon*ble Chief Justices were requested to advice for aUocation ofJudicial Of&cers for the successor States and accordingly, the twoHon'blc ClucfJusticcs got prcparcd fhc list and thc samc was scntfor approval to the Central Goveminent.Therefore, ia view of theabove law Jaid dowu, this exercise caanot be held to be abdlcatiou ofpowers by the Central Govermnent.

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47. In the case of Uaion of Indla vs. G.R. Frabhavalkar aad othersreported ia AIR 1973 Supreme Co<u-t2102, it is held that "theHigh Court has no power to go into the inerits or otherwise ofsuchequation of fhe posts, niore so when action of Central GovemiQentwas neither raala fide nor iafluenced by irrelevant and extraneousconsiderations".We find fhat nothtag has been poiated out whichgoes to show tfa.at ttte decisiou of ttie Central Govermnent is malafide and arbitrary. There are uo atlegations in the petition or groim.draised in the petittion that the impugned atlocatiou is in excess ofthe powers conferred by fhe statute or is witra.ted by inala fide.Therefore, the allocation made by fhe Central Goverament cannot be^tenned as iUegal or arbitraiy or coutraiy to the guidelines and ttiepetitioners have uot been abte to raake out any justt&able groiuid forquashing[the][ final][ aUocation.]Even though, in para 5-13 of fhepetition,it has been inentioned fhat order dated 07.06.2001regarding fhe provisional aUocation ofMr. B.K. Sbrivastava appearsto have been niade due to extraneous consideration becausesubsequent order passed by respondent No,5 (Union of India) on16.07.2001 rTinfinnmg the provisional aU.ocatkin list of 199 JudicialOfficers, did not contam. the name of Mr. B. K. Shrivastava. It is truethat the name of Mr. B.K. Shrivastava does not find place in theprovisional list dated 16.07.2001, but he was provisionatly aUocatedon 07.06.2001 aad his narae finds place ia the fixial atlocation Ustdated 07.12.2001.Therefore, merely on this grouad it catmot beconsidered fhat the provisional allocation of Mr. B.K, Stuivastavawas made for extraneous considerations.In order to substautiatefhis fact fhat fhe provisional aUocation of Mr. B.K. Shrivastava was inade for extraaeous considerations, during fhe course of thearguuicnt, lcanicd counscl for thc pctitioncr could not claborate asto how it caa be iEiferred ia fhc facts and circuiiistances that theprovisional allocation of Mr.B.K.Shnvastava wasinade forextraueous considerations.

;

48,The jurisdiction under Article 226 of the Constitutiou of India is adiscretionaiy jur^diction.The petitioners, ia order to seek reliefunder this extra-ordinary jurisdiction, are reqiiired to prove legalinju-ry and legal right as the sanie is sin qua non for issuance ofwritia favour of fhe petitioaer.Adinittedly, fhe petitioners on ttieappoiated day were canyuig the Super Tiiue Scale aad respondents6 & 7 were in the Above Super Tuue Scale.Even ia length ofservice, both fhese OfBcers are seniors by three years to thepetitioners.As discussed above, one post of Above Super TimeScale was aUotted to the State of Chliattisgarh aad as five Officersmore thau the saD.cuoned strengfh. ia the Above Super Time Scalewere working in the State of M.P. aad ni onler to acconunodatethe.in aad to coiaptete the ratio of 26.23%, two Of&cers were to beatlocated to the State of Chliatdsgarh, therefore, these two Of6cers(respondents 6 & 7) were rightly atlocated, lookuig to the posts ofRegistrar General aad Principal Law Secretaiy iu the State of;5:hhattisgarh. Therefore, in aay way, aay r^ht of fhe petitioners onaccouut of aUocation of these two Of&cers has not been infringedand no legal injuiy has been caused to fhe petitioners.If we see,fhe or^inal coiabined seniortty Ust of fhe State of M.P. as on 21"tSeptember,2000,respondentNo.6wasatserialNo.7andrespondent No.7 was at serial No.8, wheieas, petitioner Mr. DilipRaosa-heb DeshiuuKh was at serial No.31 aud aaother petitioner Mr.D.S. Jaia was at serial No.12.Afier atlocation, fhe position of Mr.Dilip Deshinukh. reached to serial No.5 and the position ofMr. D.S.Jam reached to serial No.3 in the seniorily list.As per sub-clause(4) of Part-3 of fhe guidelines dated 21at & 22nd December, 2000,final allocation of einployees should be such that it is eveiilydistributed in. respect of svge aud seniority so as to make compositeaad balance cadre in the successor State. This is necessaiy toensure that proiuotional prospects of iudividuals are neither uadulyaccelerated nor substantiaUv reduced ia the successor State to which fhey are fiiiaUy aUocated.In the l^ht of the above guideUnesand abovc position of thc pctitioncrs aftcr final aUocation, it is clcarfhatthepctitionershavenot been,inaayway,puttoadisadvautageous position or their right has not been iafnnged or nolegal iajuiy has been caused to them..In fhe service law, eveiyeiaployee bas a right of consideratmn for proinotion, but chance ofproinotion is not conditions of scrvicc.

49. In the case ofThe State of Mysore and another vs. G.N. Purohitand others reported in 1967 (1) S.L.R. 753, the Hou'ble ApexCourt held that by chaaging the systein from district-wise to state-wise fhe respondents have been veiy hard hit and have becoiae veryjunior and fhat has aBected their cliances of proinotion which werepmtected uader the proviso to Section115(7)of the StatesReorganisationAct,1956.DispeUmgthisaiyimentof thepetitioner,Hon'bletheSupreiaeCourt heldthat chaacesofproiaotion are not couditions ofservice. As discussed iu earUer partof the order, allocation of respondents 6 & 7 is not contraiy to fheguideluies and they were abeady seniors to the petitioners.SO.Tbe leamed counsel for the petitioners ar^ued that after preparationof the tentative Itet for final aUocation, fhe sam.e ought to have beencirculated among the Judicial Officers in order to give thein anopportuoily for inaking representation agam.st the proposed Ust andUie same was uol duuc iii this casc.Hc fui-'ilier ai-gucd Uiat evcuwhen the petitioners made appUcatioas to fhe Law Secretary ofChliattisgarh aad Madhya Pradesh to provide fhe copies of the Ustof final aUocation sent by fhe High Courts, even that was denied tofhe petitioners.Therefore, prmciple of natural justice has beenviola.tcd aiicl Ihcrcfoic, allocatiuu uf icspoudcuts 6 & 7 is bad.II istrue that before sending the list to the Central Ctovemm.ent for finalaUocation, tentative Ust was not circulated am.ong fhe JudicialOfi&cers to give them. opportuaity to inake aay representation, if any,against the listAs per Part-VIII ofthe guideluies for fiiial allocationissucd uu 21st/22nd Deccmbcr, 2000, a tiiuc schcdulc was fixcd fortakmg steps to prepare the Ust for final allocation aad as percohumi 3, the Advisoiy Cominittee was required to circulate fhetentative Ust to the successor States[for][ uott&catiou][ to]aU. fhe

einployees regarding tbeir final allocation aadto subinit tlieirrepreseutations, if any, for final allocation. Therefore, no doubt, fhepctitioners were. entifled for circulation of fhe teatative list to theinas per tb.e giiidelines.But we liave to see as to whether on accountof fhat the rights of the petitionershave been affected.Asinentioned above, two Officers in fhe Above Super Time scale wereto beaUocatedto theState of Cbhatdsgarh and as per theguidclmes, respondents 6 & 7 wcre ftie only etigiblc Officcrs forallocation to the State of Chhattisgarh,Apart fi-om that tliepetitioners[were][ in][ the][ Super][ Time][ Scale,][ whereas][ respondents][ 6][ &]7 were ia the Above Super Tixiie Scale.Therefore, respondents 6 &7 were already seniors and they were aUocated against the availableposts aad thc petitioncrs were not entitled for fhose posts, as tlieywere not dra\ving the Above Super Time Scale.Therefore, ia thecu-cumstances, on account of non-circulation of the list, rights ofthe petitioaers, io. aay case, are not affected vis-a-vis respondeuts 6& 7 aad no injur\7 has beea caused to fhein.However, the right ofthe pctitioners was affected to fhe extent that if fhc proposed list forfinal allocation was circulated among ttie Judicial Officers or ondemand by fhe petitioners if fhe copy of fhe proposed list wasprovided to ftie petitioners, ia that case, the petitioners could haveinade a representation looking to fheir seniority aad chances offerthcr proinotion for allpcating thein to the State of MadhyaPradesh.The petitioners have been denied this opportunlty.Non-cu-ciilation of the Ust to the petitioners aad not providing the Ust ondemand inade had certainly affected fhe right of the petitioners to^' inake fheir represeatations.If flie opportuiuty is now given to £hepedtioners to inake reprcscntations within a pcriod of 15 days fhatwiU serve fhe purpose.

Sl.Thcreforc, if thc pctitioncrs want to niakc aay rcprcscntations, theymay make represeatations to the Central Goveniment witlua aperiod of 15 days from today aad ia tum, ttie Central Goveraiaent isdirected to consider and decide the same wifhin a period of ta'oraonths from. the date of the receipt of the represeutations and passappropriate ordcrs in accordancc with law.

9'3ina

'S.A.

52. It is inade clear that nuinbers of authorities were cited bv fheleamed Advocates for the parties, but only fhose cases are referred,which are relevaiit aad havc beanng on this casc.

53. Subject to what has been stated above, in fhe opinion of this Court,p- there is no infinnity ia fhc order of final allocation andfhepetitioners have not been able to sbow fhat ttie order ofaUocation ofrespondents 6 & 7 to the State, of Chliattisgarh is fllegal.Thesepetitions (W.P.Nos.1269[of][ 2001][ &][ 414][ of][ 2002)][ are][ aGCordiagly,]stan.d disposed of. However, lookuig to flie facts and ctrcunistaiices,cost is inade easv.

Sd/-

^.12.2003

fflGH COURT OF CHHATTISGARH : BILASPURWRIT PETITION No. 414 OF 2002

Dilip Deshmukh

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State ofCMiattisgarh aiid others.

WR1T PETU10N No. 1269 Ot' 20U1

D.S. Jain

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Union oflndia and others

ORDER

Asj>er FdAruddin, J,

I have the advautage of reading the order of esteemedlearaedBrother Hon'ble L.C. Bhadoo, J. and I agree with tfie conclusions to whichhe has reached. However, I would like to point out my own reasons in thematter.

2. The petitioner in W.P. No. 414/2002 has challenged the order No.14-2-2000 S.R.(S) dated 7-6-2001 passed bythe respondent No. 5 orderingprovisionalallocatioinof respondentNo.6-ShriB.K.Shrivastava,retrospectively from 1-11-2000 to Chhattisgarfa under Section 68(1) oftheM.P. Reorganisation Act 2000 and further the joining report ofrespondentNo. 6 in the High Court of Chhattisgarh. The petitioner has fartherchallenged tiie order No. 14/46/2001 S.R.(S) ofAe respondent No. 5 on 7-12-2001 issuing a Ust offinal allocation of203 Judicial Qfficers to the Stateof Chhattisgarh wherein under the above Super Time Scale Category, therespandents No. 6 ;md 7 have been shown as allocated linally to the StateCofChhattisgarhw.e.f 1-11-2000.

3. In Ifae writ petition No. W.P. 414/2002 following reliefe are claimed:- "(i)This Ron. Court may kindly bc plcascd to send for theentire record from the possession of the respondentsfor its kind perusal;(ii)This Hon. Court be pleased to quash the impugnedorder dated 7-6-2001 (annexure P-1) and the finalallocation of respondent No.6and 7 toIfaeChhattisgarh vide order dated 7-12-2001 (AmiexureP/2) and Ihe joining reports of Shri B.K. Shrivastavadated 29-6-2001aad Shri V.K. Shrivastava date24-12-2001 as void, illegal, arbitrary and opposed tolaw.

(iii) This Hon.Coiirt be pleased to issue a writ of against the ofiGcial respoadents restrainingprohibitioathem fix>m processing tfae names of respondents No. 6and 7 for elevation to the High Court ofChhattisgarh.(iv)This Hon. Court be pleased to direct the ofl5cialrespondents to restore the position ofthe petitioner incontbnnity with tiie order No. 14/2/2000-SR(s) dated16-7-2001 (Annexure P/7) aUocating 199 judicialofficers to the State ofChhattisgarh for aU purposes.(v)Any other appropiate writ or order CM- direction whichthis H<». Court deems just, may also be passed in Ifaeinterest ofjustice;(vi)Cost ofthe petition.

'llie4. petitioner ia W.P. No. 1269/2001 has ehallenged the order No.

14/02/2000 - SR(s) dated 07-06-2001 passed hy the respondent No. 1ordering provisional posting ofrespondent No. 6. Shri B.K. Shrivastava inChhattisgarh retrospectively w.e.f. 1.11.2000 under Section 68 (1) oftheM.P. Reorganisation Act 2000 and furtherjoining duty by respondent No. 6in lUgh Court ofChhattisgarh, Bilaspur. The petitioner has claimed thefiUowmg reliefs in the pelilion No. 1269/2001:- "a. The impugned order dated 7-6-2001 (Annex. P/l) issued byrespondent No. 1 be kandly quashed.

b.The petitioner prays that he be kindly awarded fhe above SuperTime Scale w.e.f. 1.11.2000 since the date that in cadre is postavailable, as petitioner has already been approved for award ofabove Super Time Scale in Ifae full Court me^ing ofHon'ble High3-^ Court ofMadhya Pradesh in their meeting held on 08.07.2000.

c.That, final allocation Ust dated 7-12-2001 annexure A/X inrespect ofrespondent No. 6 aad 7 in above super time scale categorybe kindly quashed."

5. It is appropriate to refer the avennents and groimds raised in thepetition and also raised by respondents in their rehim briefly. However,since maia arguments have been advMiced in W.P. No. 414/2002, thepleadnigs and documents referred to in this order are mainly from W.P. No.414/2002.

6. The petitioner coirtends that on the basis of options given by theJudicial OfiBcere, a Committee Coiistifaited by the respondenit No. 4recommended provisional allocation of 199 Judidal Officers and a list wasissued by the respondfint No. 5. It is contended that subsequeutly Iherespondent No. 6 opted for State of Chhattisgarh which was forwardedwithout eoncurrence ofthe ffigh Court as required under Article 235 oftiieConstitution oflndia. It is submitted fhat ground urged in groimd No. 6.1 isfhat tfae the impugned order dated 7-6-2003 (Annexure P-1) issued by theUtiion of India allocating Shfi B.K. Shrivastava with provisiotiallyretrospective efifect w.e.f. 1-11-2000 to Chhattisgarh is issued in blatantviolation ofthe mandate ofSeetioa 68(1) oflhe M.P. Reorganization Act,2000. Subnussi<Mi in yovad No. 6.2 is that order the dated 7-12-2001(Annexure P/2) is vitiated on the ground ofhaving been issued in breach ofthe mandatory provisions of Section 68(2) of M.P. Reorganization Act,2000 as the vested in the Union oflndia for issuing a final allocation powerlist is to be exercised wittiia one year fixun ihe appointed day, i.e. 1-11-/• 2000.

7. The grounds are mentioned ia para 6 ofthe petition. Ground No. 6.3is that the allocation ofrespondents No. 6 and 7 is vitiated as mamtainmgtbc ratio of 26.23% only onc post in thc abovc Supcr Time Scale wasabolished from the erstwhile State of M.P. for beiiig allotted to thesuccessor State of Chhattisgaih, vide nottBcation dated 1-11-200 and noother post in the above Super Time Scale was sanctioned and available forrespondents No. 6 and 7 in Chhattisgaih. It is submitted in ground No. 6.4that the impugned order dated 7-6-2003 (Annextire P-1) provisionallyallocating respondent No. 6 to the State of Chhattisgarii is fiirther vitiatedfor the reasons that the name of respondent No. 6 neitfaer figured in theoriffsal provisional allocation list issued on 31-10-2000 nor figured in thesubsequent orders dated 29-3-2000 or 16-7-2001 issued by Ifae Union offadia by wMchthe allocation list of31-10-2000 was confinned. provisional

8. Reply on behalf of State of Chhattis^rh/respondent No. 1 has beenfiled. It is stated in the reply that in view of the Article 235 of fheConstitution of Tndia the allocation of a. judicial officer is a subject matterbetween the Hi^i Courts and the State Govemment has no role to play aadin the prsent case the State Govenunent of Chhattisgarii was not consultedbefore provisional ar final allocation of 1fae judicial ofi&cers. It is fiirtherstated that under the provision of M.P. State Reorganisation Act 2000 it isthe Govemment of India having the final authwily to allocate the ofiBcersincludingthejudirial ofGcers.

9. The High Court ofChhattisgarh-respondent No. 2 filed its reply. It issubmitted in the reply tfaat the reorganisation is an estra ordinary event and

provision/final allocation of fhe judfcial officers has taken place on thedecision of Hon'ble Hi^i Court of Madhya Pradesh as well as that ofChhattisgarh. It is submittcd thst thc ordcr of final aUocation has beeaissued by tlie Govemnient of India in view of die decision takea and listfinalised by Hon'ble tiie ChiefJustice ofHi^i Court ofM.P. and Hon'blethe Chief Justice of Hig^i Court of Chhattisgarh. The provisional and finalallocation of respondents 6 and 7 has beeu done after eonsidermg therepresentation ofvarious ofBcers iacludmg respondent No. 6 aad in ajointdeliberation of Hon'ble the Chief Justices of two Hi^i Courts in theirmeetmg held on 8-9-2001 wherein the entire allocation ofthe oflBcers wasfinally settled.

10. Reply of respondent No. 3/State of M.P. has also been filed. It isstated fhat smce the petitioner has not made any representation to the properauthority therefore, the petition is not maintainable. Iii reply to para 5.16 ofthe writ petition, it is stated that flie lunitaian re^rding issuance ofallocation order under Section 68(1) of M.P. Reorganization Act wasrelating only to provisional allocation and there is no time linrit for issuanceoffinal allotment order under Section 68(1) ofM.P.R.A It is stated hat Ifaechance of promotion is not a condition of service. The petitioner has nolocus standi to chaUenge the allocation ofthe officers.

11. The High Court of M.P./respondent No. 4 has filed its retum. It issubmitted thatrespondent No. 6 and respondent No. 7 were granted theAbove Super Time Scale w.e.t: 19-8-1999.It is fiirther submitted thataccordiagly tiie respondeat no. 6/Shri B.K. Shrivastava was placed at S.

No. 7 while respondent No. 7 Shri V.K. Shrivastava was placed at S. No. 8in the cadre of Above Super Time Scale.It is also submitted that thepctitioncr was not grautcd Abovc Supcr Timc Scalc and hc was placed at S.No. 31 in the cadre ofDistrict and Sessions Judges. Thus the petitioner wasplaeed much below the respondents No. 6 and 7.

12. It is submitted in paragraph 4 ofthe retum that allocation of morethan one Judicial OfGcer holding Above Super Time Scale has nolUng todo witfa allocation ofnumber ofposts in Super Time Scale. There may bemore Judidal Qfficers tfaan tfae number of posts in Above Super TimeScale/Super Time Scale/Selection Orade, who may be allocated and may befimctiomng as such ia the State of Chhattisgarii. It is stated that since therewas several ex-cadt-e posts such as Registrar General, Registrar (Vigilance),District Advisor to Hon'ble the Govemor of the State etc., a JudicialOflBcer in Ifae grade of Avove Super Time Scale may always be posted onany ofthese ex-eadre posts.

13. It is submitted that respondent No. 6-Shri B.K. Shrivastava made arepresentation on 11-1-2001 (Anaexure R-2) to the respondMrt No. 4 i.e.Hi^i Court of M.P. for change in State cadre allocation to the State ofChhattisgarh. The representation was farwarded by the respondentHighCourt ofChhallisgarii lo Ihe respondenl No. 4 vide memo dated 11-1-2001(AnnexureR-3). It is submitted that then the respoadent High Court ofChhattisgarh informed to the respondeitt No. 4 that ihe said Higfa Courtgives its CQnseDt and expresses no objeetion if' the respondent No. 6 isallocated to the State of Chhattisgarh. The matter was then eonsidered by

the respondent No. 4 and it was resolved tiiat name ofthe respondent No. 6be recommended to the State Govemment for his provisional allocation tothc State of ChhattisgaA. R is fiulhcr subnutted that thc representationsmade by other Judicial Qfficers were forwarded to tlie State Govemmentfor provisional allocation/'reallocation to the State of Chhattisgarh/MadhyaPradesh. The Central Govermneut however issued order in respect ofShriB.K. Shnvastava on 7-6-2001 .

14. In paragraph 6 ofthe retum, it is submitted that subsequently at therequest ofthe Hig^i Court of Chhattisgarh to allocate Shri A.K. Tiwari tothe High Court of M.P., the matter was placed before the AdministrativeComnuttee No. 1 in its meetmg held on 3-9-2001 and it was resolved thatHon'ble the Cliief Justice niay take appropriate decision in eonsultationwith the Hon'ble Chief Justice of High Court of Chhattisgarfi in fhe matterof final allocation of Shri A.K. Tiwari to the High Court of M.P. as perAnnexure R-4/7. Annexure R-4/7 is relevaat and quoted below:- "RXTRACT OF THE MINTJTRS OF THR MEETING OFHON'BLEADMINI8TRATIVE COMMITTEE N0.1 HELDON 3-9-2001.XXXXXXXXX

Any ofher subject with ihe pennission ofHon'ble theChief Justice FTEM N0. 14:

The request of Hi^i Court of Chhattisgarh to allocate Shri AjitKumar Tiwari lo the Madhya Pradedi Hi^i Court in Ifae finalallocation and in place to allocate some other senior officer toChhattisgarh State was considered. Resolved that Hon'ble the ChiefJustice may take appropriate decision in consuttarion with Hon'ble1tae ChiefJustice ofHigh Court CUhattisgarh.

Sd/-

-^».

15. It is subimtted that a meeting between the Hon'ble ChiefJustice ofM.P. and that ofChhattisgarh was held at Jabalpur on 8-9-2001 to considerthe matter regarding final alloeationA'eallocation of Judicial OfBcersbehveen the two States. It is also subnutted fhat after considering Iherepresentations made by the Judicial QfiScers ofthe two States allocation toOT reallocation from the State of Chhattisgarfi, recommeadations for finalaUocation ofthe Judicial Qfficeis between two States were finalised. Smcetlie respoiident No. 7 liad not exei-cised Us option and reserved his right togive his option, he was allocated to the State of Chhattisgarh in place ofShri A.K. Tiwari. It is subtnitted that the home distriet of Shri V.K.Shrivastava is Jagdalpur whieh talls within the territorial jurisdiction ofChhattisgarh State. Two separate lists of ofRcers recommended for fiaalallocation to the State as agreed upon between Hon'ble Chief Justice ofHig^i Court of M.P. and that of Chhattisgarh along wifh lists ofthe postsallocated were sent to the Principal Secretaiy, Govt. of M.P., Law &Legislative AflFairs Dq»artment, Bhopal. It is subaiitted that the Cadre ofSupei' Tinie Scale atid Above Super Time Scale is totally different and theseniority offhe Judicial OfGcers in each cadre is counted from the date thescale is granted.

16. In reply ta para 5.12 it is suhmitted tiiat on the request ofthe HighCourt of Chhattisgarh Shri A.K. Tiwari was reconunended to be allocatedto the State ofM.P. and in his place Shri V.K. Shrivastava (respondent No.7) was recommended to be allocated to the State of Chhattisgarh. fa replyto para 5.16, it is stated tfaat the provisions as contained in sub-section (2),o[ Seulion 68 of the M.P. Reorganisaliun Aul, 2000 do not put any time

Ratio decidendi

Umit on the Central Govemment for final allocation ofthe employees. Inreply to para 5.20 it is stated that it has been submitted by the petitioner inrcspcct of violation of ratio of 26.23% arc totally nnsconceived. It issubinitted tfiat the ratio of 26.23% regardmg division of posts between toStates is applieable to the officers and employees ofthe State Govemment.R is submitted that the respondent No. 4 did not adopt fhe same. Thedivision of posts in respect of Judirial Qfficers was done with reference tothe number of Courts actually functioning in the seven district ofChhattisgarh State and in addition certain OfiGcere were also allocated to beposted on deputation on ex-cadre posts in view of the need of newlyconstituted State ofChhattisgarh.

17. In paragt-aph 12 oflhe retiu-u it is suhuiitted that tlie petitioner has nolocus standii to challenge the final aUocation ofrespondents No. 6 and 7. Itis farther stafed that thougji a right ofpromotion is a condttion ofservice,mere chaaces ofpromotion are not.

18. Reply has been filed on behatf of Umon of India. Reply is quotedbelow:- "It is respectfiilly submittod that to clarify certain facts Iheanswering respondeiit beg to suhmit follovvmgAdditional reply.That on receipt ofthe letter dated 11-9-2001, along with the listshowing the Posts Allocated (marked and enclosed herewith as(ANNEXURE[R-5/1)][ finm][ tfie][ Registrar][ General][ of][ M.P.][ m^i]Court, forwarding the list of Judicial OfGcers for final allocation asagreed hy the Hon'hle Chief Justice, the details were examined, andit was seen that against a total cadre strengfh of988, there were 1051\Judicial Qfficers <»roll for final allocation.

The Central Govemmenthad provisianaUy allocated 200Judicial OfScers as against wliieh 203names were recommendedfor final allocation. On a perusal of the Ust, it was seen that theHon'ble Chief Justices of the High Courts had agreed to delete 3names of Judicial QfiBcera who were provteionally allocatedandreconimended 6 new Of&cers in lieu, making Ifae list of203 JudicialOfiBcere for allocation to tiie State ofChhattisgarh. In response to tfaelist and the details reeeived, a letter was vwitten to tfie RegistrarGeneral of M.P. ffigh Court seeking certain clarifications. Theclarifications broadly were in respect of:

a) EXC S numbnei' of ofBcers ou roll compat-ed to the sanctioned strength;

b) The broad principle of allocation decided by the Bllon'ble Hi^iCourts ofM.P. and Chliattisgarh; atid

c) Whetha: all representations from Judicial Qffieers had beenconsidered before recommending the final Ust.It is respectfully suhuutted tliat the Registrar General, M.P. HighCourt, in tam has clarified tiie issues raised by the CentralGovemment. Essentiallythese clarifications are as under:

a) A large number of oflBcefs on roll are working in otherDepartments on deputation and hence tfae variation in thesanctioned strei^th and the on-roll strength.

b) Ihe basis of allocatiou has been the number of Courtsactually functioning in the 7 Uistricts toiming the State ofCMiattisgarh and on Ifae basis of the needs of the newlyccaistitutedChhattisgarh HigbCourt.TheRegistrarGeneral has also clarified tiiat hroadly speaking guidelinesof the Central Goverament as received from fhe StateGovemmenl have been fullowed namely factors likewillingaess oflhe Judicial Officera, their home district andfactum ofhusbandandwifebeingmGovemmetitservicewere laken inlo uonsideralion.

c) As regards consideration of representations, the RegistrarGeneral has clarified fhat all decisions for final allcwationhavebeentiikenunlyallerCMsiderationof

represetitations from individual QfiBcers and that thesesrepresentations have beea duly comidered in the meetingofHon'ble Chief Justices ofthe High Courts ofM.P. andthatof Chhattisgaifa heldon8-9-2001,and afterconsideration ofthe repr^entations, the final list has beenprepared[witfa][ the][ agreement][ of][ both][ 1he][ Chief][ Justice][ of]tfae Hon'ble Hi^i Courts.

A copy ofthe Chart showing the IMstributton ofPosts andAHocation of Judlcial Offlcers prepared by the DOP&T,based on tlie list ofJudidal OflScefs and distribution ofpostsfamished by Ifae Registrar General, M.P. ffi^i Court is alsomariced and enclosed as ANNEXURE-R-S/2.K is respectfully subtnitted that in view of the aforesaidelarifieations firon the Registrar General of MP Higjh Court,final allocation orders in respect of Judicial QfiGcers workingin tlie successoi- State ofMP aid Clihattisgarh were issued.Annexure P/10 referred by the petitioner in Para 6.11 containsdetailedproceduralguidelinesissuedbytheStateReorganisatioti Cell, Govemnient ofMP, Bhopal pursuanttofheCentralCjovemmaat'sbroadguidelinesof13September, 2000 and 22nd December,2000, respectively. InAnnexsure P/10 at paa-a (19), it has beai clearly stated that inrespeet of distribution of posts in the Legislative Assemblyand the Judicial Serviees, Central Govennnent will takeappi-opriateactioii in consultation with the LegislativeAssembly/ChiefJustiees ofth ffigh Courts.It is respectfiilly suhmitted that in view ofthe aforesaid Ifaeaulian of the Answering respondenl il is just and legal and thepetition being devoid of substance and misconceived is liableto be dismissed."

19. Underfhereor^nisations,vestwiththeCentralpowersGovenimenL In the given case, the Central Govemment has exereised powers.[The]petitioner[has][ itself][ fUed][ documetrt][ Annexure][ P-6][ dated][ 29]

March 2001 which is reproduced below:-

"Govcmmcnt oflndia (Departmcnt ofPcrsonncl and Tramiag) havehad Ifae occation to review the provisional allocation ordere issued inrespect ofJudicial Service Qfficers and QfiGcera and Staffbelonging tothe High Court of Madhya Pradesh in tenns of the under-mentionedorders:

(a) Order No. 14/2/2000-SR(S) dated 31.10.2000 in respect ofannexure pertainmg to the Departaent of Law and LegislativeAffairs, Govermnent ofMadhya Pradesh.(b)Order No. 14/2/2000-SR(S) dated 15/18.12.2000 canceUing theprovisionalallocationordersinrespectofOfiBcers/staffbelonging to Ihe Hi^i Court of Ma<fliya Pradesh to the successorState ofCliliattisgarh.

After diie examination of all relevant recotds, it has come to li^atthat atno stage has the Central Govemmentissued provisional allocationorders ia respect of Qfficeis and staff belonging to the Hig}i Court ofMadhya Pradesh and fherefore Ifae orders referred at (b) above were notrec|uired and are basically mfinctuous. It is also mentioned that in termsof order dated 15/18/2000, it was specifically mentioned tiiat onlyprovisional allocation orders in respect ofQfBcers and staffof the Hi^iCourt of madhya Pradesh, to serve in connection with the affairs ofChhattisgarh State were cancelled. The logical conclusion, Iherefore,follows that fhe provisional allocation orders in respect of JudicialQJGBcers issued vide orders dated 31.10.2000, referred above, continuedto be valid and operational.In view of 1fae foregoing clarification and also to dispel anymisgivings, enclosed please find herevrith a copy of the orders of evennuniber dated the 29Mareh 2001 in Hin(U treating Ihe orders ofCentralGovemmeirtofevenmmiberdated15/18.12.2000asinfhictuous. The list of 199 Judicial Service Officers -wliose provisioaalallocation orders was issued vide ordecs of even number dated31.10.2000 and which is still operational and valid is sent herewith forready reference."

20. Annexure P-6 goes to show that the Central Govt. very carefiillyexamined the relevaifl records, orders in respeet ofQfficers ofthe JudicialServiues. They alsu examined in respeut of uIGueis and staff belonging tofhe High Court. So far as Judicial Qfficers are coacemed, the list of 199Judicial OfiBcers whose proyisional allocation orders was issued vide ordersdated 31.10.2000 were held to be valid. So far as provisional alloeation^ordera in respect ofoflGcers and staffofthe Hi^i Coiut ofMadhya Pradesh were not approved and it was stated that at no stage, Higfa Court staffwasrequired to be allocated. Therefore, the documart Annexure P-6 itselfgoesto show that thc Ccntral Govcmmcnt cxamincd all fhc relevant records,scrutuiised it and dealt witfa the matter very carefully and wherever it fehthat orders are not in accordanee with law even by the Hon'ble ChiefJustfce of High Court, Ifae Central Govemment did not agree to that. Theorders of allocation which aceording to it were in accordance with law wereonly held to be valid.

21. In the order my leamed Brother has mentioned Ifaat Shri A.K. Tiwaricould not have been provisionaUy allocatsd to the State of Chhattisgarh inview of the policy of the Central Govemmetit and as such in the finalallocatioti he lias beeti rightly sent back to the State of M.P. So far as thisporposition is concemed, with respect, I do not subscribe to that for thereasons stated heremafter. The categorical stand ofrespondent No. 4-HighCourt ofM.P. as reflected in the retum ofrespondent is that the request ofHigh Court of Chhattisgarh to allocate Shri A.K. Tiwari to the MadhyaPradesh High Court in the final allocationand in place to allocate someother senior officer to Chhattfsgarii State was considered and it wasresolved in the meeting of the Admuustrative Committee No. 1 of HighCourt ofM.P that IIon'ble the ChiefJustiee may take appropriate decisioninuonsullationwith Hon'bleIhe Chief Justiue of High Court ofChhattisgarh. It is further stated that in the meeting between tfae Hon'bleChief Jusdce of M.P. and that of Chhattisgarh was held on 8-9-2001 toconsider the matter regardine final alloeation/reallocation of JudieialQfficers between the two States. The respondeat No. 7 had not given his option and reswved his right to given option and he was allocated to Stateof Chhatrisgarii in place of Shri A.K.Tiwari. I am unable to subscribe to theobscrvation that Shri A.K. Tiwari's provisional allocation itself was bad.Sliri A.K. Tiwari was the only person who had given option in the AboveSuper Time Scale and the Hi^i Court reccommended and CentralGovenunent provisionally allocated him. Shri A.K. Tiwari's provisionalallocation is not in challenge before us. He is not a party before us and assuch I would refrain niyselffrom malung any observatioa with reference tothe validity ofprovisional allocation ofShri A.K. Tiwari as the same is notin dispute.

'>')So far as the Above Super Time Scale granted to Shri D.S. Jain isconcenied, the inattef has beai coiisidered in paragraphs 40, 41 and 42 ofthe order of the leamed Brother. I would like to say that Shri D.S.Jain inthe petition claimed with effect from 1-11-2000 whereas the Hi^i Court ofChahttisgarh has granted the same with eflect from 10-8-2001.

23. Stand of the High Court of M.P. is also to the efFect tiiat it was forthe Higji Court of Chhattisgarh to consider aad grant. The High Court ofChhattisgarh has granted the same. The grant has not been challenged.

24. In this regard Ihe respondent No. 6 has laken his stand in para 6 offte retum filed in W.P. No. 1269/2001. Para 6 ofthe retum is quotedbelow:- "That the petitioner is not entitled to any of the reliefs claimed in 7 of the IIowever, this respondent makes a fiirtherpara petition.subaussion that the has not filed this with bona petttioner petitionfide mtenlions in as much fi-om the yonlenlions of para 6.13(B) of

the petition., it is clear that tfais respondent is senica- to even ShriA.K. Tiwari aad since the latter joined in the Ex-Cadre pcst ot LawSecretary and since on the appointed day i.e.1-11-2000 thisrespondent was woridng as District Judge, Durg on fhat date, tiiepctitioner is not at all prejudiecd or aflfcctcd by the impugned cu-deranA therefore, he has no pievance to make. It is furtfaer submittedtiiat graat ofany scale aiid fixing a date fherefor is the exclusivediscretion of the Hon'ble Hi^i Coort and the petitioner has alreadybeen granted 'Above Super Time Seale' as mentioned above. Thefinal allocation has also been made and Shri V.K. Shrivastavaq, alsojunior to this respondent and drawing the 'Above Super Time Scale'has been atlocated to Ifae State ofChhattisgariiand posted as DistrictJudge, Raipur. Therefore, in fact as per the eontentions of Ifaepetition, the'Above Super Time Scale' granted by Ihe Hon'ble Hi^iCourt of Chhattisgarh to the petitioner w.e.f. 10-8-2001 deserves tobe witlidrawii at least from tiie date Slni V.K. Shfivastava has joinedas District Judge, Raipur."

25. In 40, 41 and 42 of the order, it has been observed that Ifae parasgraut ofAbove Super Time Seale to Mr. D.S. Jain was not at all legal andjustified. With respect, I do not subscribe to the conclusions reached at byruy leamed Brother and I ani of the opinion that Shri D.S. Jain was theperson who was on tiie substantive post ofDistrict Judge, Raipur whereasths A.K. Tiwari and respondent No. 6 Shri B.K. Shrivastava both were onEx-Cadre. I held that the said benefit doesw not deserve to be withdrawn asttie saiiie has rightly been grairted. Iti my opinion there is also nothingwrong in fhe posting of Shri B.K. Shrivastava as District Judge OSD(Vigilence) as on that day the post was available. Shri B.K. Shrivastava hasnot raised any grievanee on that posting. So tar as Full Court is concemed, have not challenged the same on that and I refrain mysetfparties ground&om expresseing any opinion on that as for arriving that, the parties have tobe put on notice including the Hi^ti Court.

26. One aspect deserves to be dealt with vAich relates to the submissionuf rfipresenlation for uhange of uption flum State of Msidhya Eradesh to State ofChhattisgarh by respondeiit No. 6. respondent No. 6 submitted that

therewasmisunderstandiag.Leamedcounselforthepetitionerstrcancously argucd that thc rcspondcnt No. 6 subBaittcd a representationfor cbange ofoption on 11January. Tliis he had done while he was stillserving as District and Sessions Judge, Durg. He had forwarded a copy ofthe same to the Hi^i Court of Chhattisgarh as well. The then RegistrarGeneral forwarded the same intially with the recoiiunendation of Hon'blethe Chief Justice and subsequently wrote that the Hi^i Court ofChhattisgarh had no objection. Shri manindra Shrivastava, leanied eounselappearing far Ihe High Court of Chhattisgarh submitted that this was notplaced before the Full Court. Normally that would have been better had thesame been placed before the Full Court ofthe High Court of Chhattisgarhat tiiat time but stoce that had uot beeti doiie tlie pt-ocess is not vitiated. Therepresentation was to be considered by the Central Govemment. The HighCourt of Chhattisgarh and that of Madhya Pradesh coiild have given thereeommendation for and a^isnt, but the decision was to be taken by theCentral Govemment. The Central Govemment has taken the decision andhas issued the order and the decision was consciously taken and it waswithin the domain of the Cenlral Govemmetit and that having been done,the uttimate decision ofthe Central Govemmeiit camiot be set aside on thisground.

^i^w27.Onefaspeet deserves to be considered is reliefNo. 7(iii). So far as the<relief No. 7(iii) in W.P. 414/2003 regarding issuaace of a writ ofagainsttiheofficialrespondentsrestrainingthemfromprohibitionprocessing Ihe names ofrespondents No. 6 and 7 for elevation to the High Court of Chhattisgg^Tis concemed, matter is settled by tfie decision oflfaeApex Court m R.K. Mahajanv- ChiefJustice ofHimachal Pradesh HighCoun and othcre d995f3) SCC 655. Para 4 and 7 of the decision arerelevant and quoted below:- ^

"4. The appomtment to the superior courts is a constitutionalprocess. It cannot be dealt wifh at the level ofinter se seriiorfty evenso far as appointment from the judicial serviee is c<mcemed so longas the senior ofBcer's merit and suitability are taken into accountbefore he is not recommended for elevation.

7. Generallyspeakiag,nowrit wouldgo toconstitutionalfiuictiotiaries to fot-m an opuuoti aboutlhe eligibility and suitabilityofa person for appointmeiit as a Judge ofthe superior eourt. Judicialreview is, indeed, in a narrow area such as where non-eonfomiitywifh mandatory constitutional conditions eitfaer as to the eIigibiUtyor as to procedure are clearly shown to havs been violated. Here, thepetitiener wants'llie a pre-emptive quia timet action which is notpermissible.prayeraintfuswritpetitionarenotpemrissible......"

In view ofthe law laid down by the Hon'ble Supreme Court in theabove case, Ifae relief No. 7(iii) is not pennissible and deserves to berejected. Ukewise reliefNo. 7(iv) ofthe petition claimed praying to restorethe position of the petitioner in confomrity with the order No. 12/2/200-SR(s) dated 16-7-2001 allocatuig 199 judicial officers to the State ofChhattisgarii for all purposees also deserves to be rejeeted in view ofourorders.

28. Before parting, this Court appreciates the vsyystluable assistancerendered by the Counsel Ibr the parties.r.-i • ••

•r.-i • •Jiidge^-12-2003