KUNJ BIHARI PRASAD SINH Vs. STATE OF BIHAR

JUDGEMENT

(1.) THE dispute in this batch of three writ petitions on behalf of 109 employees of the Bihar School Examination Board (in short 'the Bihar Board ') relates to their allocation to the Jharkhand Secondary Examination Board (in short, 'the Jharkhand Board ') upon the division of the State of Bihar under the Bihar Reorganisation Act, 2000 and establishment of separate Examination Board in the State of Jharkhand.

(2.) THE dispute relating to division of cadre had come upto this Court earlier also at the instance of the petitioners in CWJC Nos. 4533, 4641 and 4884 of 2001. The petitioners were aggrieved by the decision of the Administrators of the two Boards taken in the meeting held on 26.3.2001 communicated vide memo no. 3026 etc. dated 31.3.2001 by which they were permanently allocated as employees of the Jharkhand Board. The writ petitions were allowed on the ground that the Reorganisation Act does not vest power to allocate the employees to the Jharkhand Board. The Court observed that in case the Board feels any difficulty it may move the State Government or any other appropriate authority to invoke section 92 of the Reorganisation Act which confers power to remove difficulties on the President of India. The Division Bench upheld the said order in LPA No. 428/2001. The Division Bench too observed that as there is no provision in the Act in the matter of allocation of the employees of the Bihar School Examination Board and the power to remove any difficulty is vested in the President under section 92 of the Act, "the Board is advised to move the Central Government for appropriate direction with regard to allocation of its employees". The Board/State Government, it appears, moved the Central Government in the light of the aforesaid observations of this Court. On 27.3.2002 a statutory order titled the Bihar Reorganisation (Removal of Difficulties) Order, 2002 ' (in short, 'the Removal of Difficulties Order ') was issued by the President of India, the relevant part of which may be quoted at the outset as under : "Whereas, a difficulty has arisen with respect to the allocation of the employees of the statutory corporations covered by section 66 of the Bihar Reorganisation Act, 2002 (30 of 2000); Now, therefore, in exercise of the powers conferred by sub -section (1) of section 92 of the Bihar Reorganisation Act, 2000, the President hereby makes the following Order, namely : (1) This Order may be called the Bihar Reorganisation (Removal of Difficulties) Order, 2002. (2) It shall came into force at once. The allocation of assets, liabilities and employees of the statutory corporations or bodies covered under section 66 of the Bihar Reorganisation Act, 2000 shall be done by mutual agreement between the successor States of Bihar and Jharkhand and in the event of any disagreement by the Central Government, on a reference being made by either of the States."

(3.) THE case of the petitioners is that the same list, earlier notified on 26.3.2001/ 31.3.2001, has been reiterated as an empty formality without application of mind. Indeed, the allocation has been made without laying down any principle or guideline on pick and choose basis. The same list having been reiterated the allocation continues to be defective. The case of the petitioners further is that there being no provision in the Reorganisation Act regarding allocation of employees of the Bihar School Examination Board the only way was/is to amend the Act; recourse to section 92 is no solution. Section 92 envisages removal of difficulty where difficulty arises in implementing the provisions of the Act. There being no provision in the Act regarding allocation of employees of the Bihar School Examination Board, by an executive order the lacuna cannot be removed taking recourse to section 92. It is submitted that in earlier writ petitions this Court had held that "now there is no scope of issuing any directions by the Central Government under section 66 of the Act. Such power of the Central Government is expressly confined to the period until other provision is made by law." The Division Bench did not find any infirmity in the order and it is not open to this Court at this stage to uphold the impugned allocation made in terms of the Removal of Difficulties Order issued under section 92 of the Act.