Supreme Court of India
G H STATE OF BIHAR & ORS. versus DR. CHAITRAYA KUMAR SINGH & ORS. on 19 July 2019
SUPREME COURT REPORTS
[2019] 9 S.C.R.
STATE OF BIHAR & ORS.
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v.
DR. CHAITRAYA KUMAR SINGH & ORS.
(Civil Appeal No.5709 of 2019)
BJULY 19, 2019
[DR. DHANANJAYA Y CHANDRACHUD ANDINDIRA BANERJEE, JJ.]
Service Law:Transfer – Re-organisation of two States –Bifurcation of erstwhile State into the State of Bihar and the State ofCJharkhand – First respondent-Medical Officer initially allocatedto the State of Jharkhand – After three years on request byrespondent, allocation made to State of Bihar with mutual approvalof both States – However, the respondent continued to work asemployee of State of Jharkhand till he attained the age ofDsuperannuation – Writ petition filed by respondent few days beforehis superannuation, seeking issuance of directions to the State ofJharkhand to relieve him for joining the State of Bihar – High Courtissued direction to State of Bihar to issue orders for accepting thefirst respondent as its employee on transfer from State of Jharkhand– Upheld by the Division Bench – On appeal, held: First respondentEtook no steps to pursue his legal remedies when he was aggrievedby the decision of the State of Jharkhand not to relieve him fromservice so as to enable him to join the State of Bihar – He did notespouse his rights and remedies under the law by seeking recourseto the reliefs available at that stage, rather continued to work forFthe State of Jharkhand for seven years and retired from service on30 April 2017 – Order of the Government of Jharkhand relievinghim on 31 July 2017 after his superannuation, is of no consequence– Having now attained the age of superannuation in the State ofJharkhand, the State to which he was originally assigned and wheredespite the order of re-allocation the respondent worked for sevenGyears, it would not be appropriate to direct that he should beabsorbed by the State of Bihar – Thus, the High Courterred in issuing the directions and the order of the HighCourt set aside.
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CIVIL APPELLATE JURISDICTION: Civil Appeal No.5709 of2019
From the Judgment and Order dated 05.11.2018 of the High Courtof Jharkhand at Ranchi in L.P.A. No. 197 of 2018
Devashish Bharuka, Ravi Bharuka, Ms. Sarvshree, Justine George,Aditya Singhal, Akshay Amritanshu, Advs. for the Appellants.
Kumar Shivan, Manoj Tandon, Ms. Tulika Mukherjee, Advs. forthe Respondents.
The Judgment of the Court was delivered by DR DHANANJAYA Y CHANDRACHUD, J.
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1. Leave granted.
2. This appeal arises from a judgment of a Division Bench of theHigh Court of Jharkhand by which a direction that was issued by thelearned Single Judge to the State of Bihar to issue orders “for acceptingthe first respondent as its employee on transfer from the State ofJharkhand” has been upheld.
3. The first respondent was appointed as an Ayurvedic MedicalOfficer on 26 May 1989 in the erstwhile State of Bihar prior to itsreorganization. On 15 November 2000, the Bihar Re-organisation Actresulted in the bifurcation of the erstwhile State into the State of Biharand the State of Jharkhand. Options were invited from the employeesfor allocation of their services to either of the resulting States. The firstrespondent opted for the State of Bihar.
4. The Union government issued certain guidelines on 8 June2006 which envisaged that even after final allocations, employees couldbe posted to either of the succeeding States with the mutual consent ofboth States. On 9 February 2007, the Union government allocated thefirst respondent to the State of Jharkhand upon which the Governmentof Bihar in the Department of Welfare issued a notification on 27 February2007 requiring the first respondent to join the State of Jharkhand. On 22March 2007, the first respondent joined the State of Jharkhand and wasposted as an Ayurvedic Medical Officer in District Simdega.
5. On 11 January 2010, the first respondent made an applicationfor his re-allocation to the State of Bihar. Both the States acceded to A
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Athe request and on 30 July 2010, the first respondent was allocated tothe State of Bihar. Consequently, on 6 September 2010, the HomeDepartment in the Government of Bihar issued formal orders allocatingthe services of the respondent to the State of Bihar.
6. The grievance of the first respondent is that though heBsubmitted an application to the State of Jharkhand to relieve him on 6October 2010, he was not relieved so as to enable him to join the Stateof Bihar.
7. The factual position that emerges is that the first respondentcontinued to work as an employee of the State of Jharkhand where heCattained the age of superannuation on 30 April 2017. A few daysbefore he superannuated, the first respondent filed a Writ Petition beforethe High Court of Jharkhand seeking the following reliefs:- “(i) For a direction commanding upon the respondent no. 2 torelieve the petitioner forthwith for joining to the State of Bihar, inDview of the Notification contained in Memo no. Sta./Jha./Vi.-244/10-10416 dated 06.09.2010, issued by Home(Special) Department,Government of Bihar, whereby the petitioner was allocated to theState of Bihar with the consent of both the successor States.
(ii) To further direct the respondent no. 3 to accept the joining ofEthe petitioner in the State of Bihar in the light of Notificationcontained in Memo No. Sta./Jha./Vi.-244/10-10416 dated06.09.2010 issued by the Home (Special) Department,Government of Bihar.
(iii) To direct the respondents 1 and 2 to explain to this Hon’bleFCourt as to under what power and authority the petitioner has notbeen relieved as yet for joining to the State of Bihar, despite thedecision of allocation of the petitioner to the State of Bihar withthe consent of both the successor State.”
8. On 31 July 2017, after the first respondent had retired, theState of Jharkhand purported to relieve him with effect from 30 AprilG2017. The age of superannuation in Bihar applicable to the firstrespondent is 67 years whereas in the State of Jharkhand, where hehad worked, he attained the age of superannuation upon reachingthe age of 60 years.
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9. The Writ Petition was allowed by the learned Single Judge andthe order has been confirmed in a Letters Patent Appeal by the DivisionBench.
10. Assailing the correctness of the judgment of the Division Bench,Mr. Devashish Bharuka, learned counsel appearing on behalf of theappellant submitted that in pursuance of the request of the firstrespondent, an allocation was made to the State of Bihar with themutual approval of both States. However, despite his allocation to theState of Bihar on 6 September 2010, the first respondent continued towork in the State of Jharkhand until he retired in 2017. Accordingto the appellant, no vacancy is available in the State of Bihar againstwhich the respondent can now be absorbed. It has also been urged thatit was only in 2017 that the respondent instituted the writ proceedingsto enforce the order dated 6 September 2010 by which time he was onthe verge of retirement in the State of Jharkhand. Hence, it has beensubmitted that the first respondent having now retired from the State ofJharkhand, cannot seek relief in pursuance of the order dated 6September 2010. Moreover, it has been submitted that he was informedon 12 October 2015 that his application for joining the State of Biharcould not be accepted in the absence of a vacancy and eventhereafter, no steps were taken by the respondent to ensure that theState of Jharkhand relieved him so as to enable him to join the servicesof the State of Bihar. Mr. Bharuka urged that it was only with a viewto seek the benefit of an enhanced age of retirement that the firstrespondent is now attempting to move over to the State of Bihar aftersupernannuating from Jharkhand.
11. On the other hand, Mr. Manoj Tandon, learned counselappearing on behalf of the first respondent has urged that after theallocation of his services to the State of Bihar on 6 September 2010,there has been no withdrawal of that notification. Learned counselsubmitted that the first respondent made all efforts with both States:with the Government of Bihar by seeking to join service and with theGovernment of Jharkhand by seeking to be relieved. Since he wasnot relieved by the State of Jharkhand, it was urged that he hadno option but to continue in service. Hence, it has been submittedthat so long as the notification allocating him to the State of Biharcontinues to hold the field, there was no reason for the appellants to A
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Adeny him the benefit therein even though he has attained the age ofsuperannuation in the State of Jharkhand.
12. The facts as they emerge before the Court indicate thatupon the reorganization of the two States in 2000, the firstrespondent was initially allocated to the State of Jharkhand on 9BFebruary 2007. In 2010, when the respondent sought a re-allocation tothe State of Bihar, which was permissible under the guidelines of theUnion government with the consent of the two States, his request wasacceded to and he was in fact allocated to the State of Bihar on 6September 2010. The grievance of the first respondent evidently is thatthe State of Jharkhand did not relieve him. However, the first respondentCtook no steps to pursue his legal remedies when he was aggrieved bythe decision of the State of Jharkhand not to relieve him from service soas to enable him to join the State of Bihar. The first respondent didnot espouse his rights and remedies under the law by seeking recourseto such reliefs as would have been available at that stage. Instead, heDcontinued to work for the State of Jharkhand for seven years and retiredfrom service on 30 April 2017. The order of the Government ofJharkhand relieving him on 31 July 2017 after his superannuation, isof no consequence. The first respondent must, take the blame for nothaving pursued remedies available to him under the law to ensurethat the State of Jharkhand issued an order relieving him so as to join theEState of Bihar. Having now attained the age of superannuation in theState of Jharkhand, the State to which he was originally assigned andwhere despite the order of re-allocation the respondent worked forseven years, it would be manifestly inappropriate to direct that heshould be absorbed by the State of Bihar. Quite apart from the fact thatFthe State of Bihar has submitted before the Court that they have novacancies, the respondent did not take steps to enforce his rightsunder the order dated 6 September 2010 even after the State of Biharinformed him on 12 October 2015 that it was unable to accepthis services.
G13. We are of the view that the learned Single Judge of the HighCourt and Division Bench in appeal, were in error in acceding to theprayer for relief on the part of the respondent.
STATE OF BIHAR & ORS. v. DR. CHAITRAYA KUMARSINGH & ORS. [DR DHANANJAYA Y CHANDRACHUD, J.]
14. We accordingly allow the appeal and set aside the impugnedjudgment and order of the High Court dated 5 November 2018. In thecircumstances, there shall be no order as to costs.
15. Pending application(s), if any, shall stand disposed of.
Nidhi Jain
Appeal allowed.
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