DILIP DESHMUKH Vs. STATE OF C.G. AND ORS.
LAWS(CHH)-2003-12-13
HIGH COURT OF CHHATTISGARH
Decided on December 06,2003

DILIP DESHMUKH Appellant
VERSUS
State of C.G. And Ors. Respondents


Referred Judgements :-

THE STATE OF MYSORE AND ANR. V. G.N. PUROHIT AND ORS [REFERRED TO]
SHRI. H.D. KAINTHALA,CHIEF JUDICIAL MAGISTRATE V. THE UNION OF INDIA AND ORS [REFERRED TO]
BHIMAJI ANNA RAO PATIL AND ANR. V. THE REGISTRAR,HIGH COURT OF MYSORE,BANGALORE AND ANR [REFERRED TO]
UNION OF INDIA VS. P K ROY [REFERRED TO]
COMMR OF INCOME TAX U P COMMR OF INCOME TAX U P VS. JAGANNATH MAHADEO PRASAD:GAURI DUTT BHAGWAN DASS AND CO [REFERRED TO]
UNION OF INDIA W H DESHMUKH VS. G R PRABHAVALKAR:GOPAL RAMGHANDRA [REFERRED TO]
V B RAJU VS. STATE OF GUJARAT [REFERRED TO]
STATE OF MAHARASHTRA VS. CHANDRAKANT ANANT KULKARNI [REFERRED TO]
TEJPAL SINGH VS. STATE OF UTTAR PRADESH [REFERRED TO]
J K INDUSTRIES LIMITED VS. CHIEF INSPECTOR OF FACTORIES AND BOILERS [REFERRED TO]
MALLAWWA VS. ORIENTAL INSURANCE COMPANY LIMITED [REFERRED TO]
MADAN MOHAN CHOUDHARY VS. STATE OF BIHAR [REFERRED TO]
HARBHAJAN SINGH VS. PRESS COUNCIL OF INDIA [REFERRED TO]
GAUHATI HIGH COURT VS. KULADHAR PHUKAN [REFERRED TO]
BRIJ MOHAN LAL VS. UNION OF INDIA [REFERRED TO]


JUDGEMENT

L.C. Bhadoo, J. - (1.)BY this writ petition (W.P. No. 414 of 2002) under Articles 226 and 227 of the Constitution of India, Petitioner Mr. Dilip Deshmukh, District and Sessions Judge (Super Time Pay Scale), has challenged the order dated 07 -06 -2001 passed by the Union of India ordering provisional allocation of Respondent No. 6 Mr. B.K. Shrivastava, District and Sessions Judge, Rewa (M.P.) retrospectively w.e.f. 01 -11 -2000 to the State of Chhattisgarh under Section 68(1) of the Madhya Pradesh Reorganisation Act, 2000, and also the order dated 07 -12 -2001 passed by the Union of India by which under the Above Super Time Scale category, Respondents 6 and 7 namely, Mr. B.K. Shrivastava and Mr. V.K. Shrivastava, respectively, have been allocated finally to the State of Chhattisgarh w.e.f 01 -11 -2000. Similarly, by writ petition No. 1269 of 2001 under Articles 226 & 227 of the Constitution of India, Petitioner Mr. Dharmendra Swaroop Jain, District & Sessions Judge, Raipur, has challenged the provisional allocation of Mr. B.K. Shrivastava, District & Sessions Judge, Rewa (M.P), vide order dated 07 -06 -2001 passed by the Union of India under Section 68(1) of the M.P. Reorganisation Act, 2000 and also the final allocation of above two officers i.e. Mr. B.K. Shrivastava and Mr. V.K. Shrivastava Since, in both these writ petitions, same question of law is involved and also same allocation orders, are challenged, they are being disposed of by this common order. At the time of the provisional allocation both the Petitioners were working in the cadre of District & Sessions Judge in Super Time Scale, whereas, both the Respondents (Respondents 6 & 7) were working in the cadre of District & Sessions Judge in Above Super Time Pay Scale. Facts leading to filing of these writ petitions are that the Government of India decided to bifurcate the State of Madhya Pradesh into two States i.e. Madhya Pradesh and Chhattisgarh accordingly a Bill was laid before the Parliament under the enabling power of Articles 2, 3 & 4 of the constitution of India, Relevant parts of Articles 2, 3 & 4 of the Constitution of India, which are relevant in these cases are reproduced below:
(2.)ADMISSION or establishment of new States - -Parliament may by law admit into the Union, or establish, new States on such terms and conditions as it thinks fit. Formation of new States and alteration of areas, boundaries or names of existing States - - Parliament may by law - -
(a) form a new State by separation of territory from any State or by uniting two or more States or parts of States or by uniting any territory to a part of any State; (b) increase the area of any State;

[Explanation I. - - In this articles, in Clauses (a) to (e), "State" includes a Union territory, but in the proviso, "State" does not include a Union territory. Explanation II. - - The power conferred on Parliament by Clause (a) includes the power to form a new State or Union territory by uniting a part of any State or Union territory to any other State or Union territory.]

Laws made under Articles 2 and 3 to provide for the amendment of the First and the Fourth Schedules and supplemental, incidental and consequential matters - - (1) Any law referred to in Article 2 or Article 3 shall contain such provisions for the amendment of the First Schedule and the Fourth Schedule as may be necessary to give effect to the provisions of the law and may also contain such supplemental, incidental and consequential provisions (including provisions as to representation in Parliament and in the Legislature or Legislatures of the State or States affected by such law) as Parliament may deem necessary.

(2) No such law as aforesaid shall be deemed to be an amendment of this Constitution for the purposes of Article 368.

The Parliament resolved to bifurcate the State of Madhya Pradesh as mentioned above and in pursuance of that, Act No. 28 of 2000 i.e. the Madhya Pradesh Reorganisation Act, 2000, was enacted by the Parliament for providing the territories of the two States and to make the necessary supplemental, incidental and consequential provisions relating to representation in Parliament and in the State Assemblies, distribution of revenues, apportionment of assets and liabilities, management and development of water resources and other matters. In Part -IV of this Act (No. 28 of 2000) a provision was made regarding High Court and in Part -VIII Provisions as to services were made. Relevant Sections 68, 69, 71 and 72 read as under:

68. Provisions relating to services in Madhya Pradesh and Chhattisgarh - -(1) Every person who immediately before the appointed day is serving in connection with the affairs of the existing State of Madhya Pradesh shall, on and from that day provisionally continue to serve in connection with the affairs of the State of Madhya Pradesh unless he is required, by general or special order of the Central Government to serve provisionally in connection with the affairs of the State of Chhattisgarh:

Provided that no direction shall be issued under this section after the expiry of a period of one year from the appointed day. (2) As soon as may be after the appointed day, the Central Government shall, by general or special order, determine the successor State to which every person referred to in Sub -section (1) shall be finally allotted for service and the date with effect from which such allotment shall take effect or be deemed to have taken effect.

(3) Every person who is finally allotted under the provisions of Sub -section (2) to a successor State shall, if he is not already serving therein be made available for serving in the successor State from such date as may be agreed upon between the Governments concerned or in default of such agreement as may be determined by the Central Government.

Provisions relating to other services - - (i) Nothing in this section or Section 68 shall be deemed to affect on or after the appointed day the operation of the provisions of Chapter I of Part XIV of the Constitution in relation to determination of the conditions of service of persons serving in connection with the affairs of the Union or any State:

Provided that the conditions of service applicable immediately before the appointed day in the case of any person deemed to have been allocated to the State of Madhya Pradesh or to the State of Chhattisgarh under Section 68 shall not be varied to his disadvantage except with the previous approval of the Central Government.

(2) All services prior to the appointed day rendered by a persons - - (a) if he is deemed to have been allocated to any State under Section 68, shall be deemed to have been rendered in connection with the affairs of that State; (b) if he is deemed to have been allocated to the Union in connection with the administration of the Chhattisgarh shall be deemed to have been rendered in connection with the affairs of the Union;

for the purposes of the rules regulating his conditions of service. (3) The provisions of Section 68, shall not apply in relation to members of any All India Service. Advisory committees - -The Central Government may, by order establish one or more Advisory Committees for the purpose of assisting it in regard to - -

(a) the discharge of any of its functions under this Part; and (b) the ensuring of fair and equitable treatment to all persons affected by the provisions of this Part and the proper consideration of any representations made by such persons. Power of Central Government to give directions - -The Central Government may, give such directions to the State Government of Madhya Pradesh and the State Government of Chhattisgarh as may appear to it to be necessary for the purpose of giving effect to the foregoing provisions of this Part and the State Government shall comply with such directions.

(3.)IN order to carry out the provisions of above sections, the Central Government issued guidelines for provisional allocation under Section 72/of Act No. 28 of 2000 on 13th September, 2000 regarding the principles governing the provisional allocation of personnel belonging to the services other than the All India Services to the new States in accordance with the provisions of the Reorganisation Acts, 2000 and thereafter, for final allocation guidelines were again issued by the Government of India vide order dated 21st/22nd December, 2000. A provision of Advisory Committees was provided for under Section 71 of the Act and State Advisory Committee was constituted vide order dated 01 -01 -2001, as per the provisions of Section 71 of the Reorganisation Act; meeting of that Committee was held on 23rd & 24th February, 2001, under the Chairmanship of Mr. N.V. Lohani. In the meeting of that committee certain modalities for allocation of the personnel to the successor States were laid down and minutes of the meeting were also prepared. As per Clause 3.3 of the minutes, it was decided that as the allocation of the employees of State Assembly and Judiciary also comes under the purviews of the Reorganisation Act, therefore, looking to the specialties of these services, the allocation of employees of these two institutions should be made in consultation with the Hon'ble Speakers of the both the Assemblies and the Hon'ble Chief Justices of both the High Courts. Again as per Clause 3.6 the principles governing the distribution of posts were laid down and it was decided to allocate 26.23% posts to the newly created State of Chhattisgarh and in the last lines of Chapter -V regarding the distribution of the services of the employees of the State Judiciary and the State Assembly, it was mentioned that steps should be taken for their allocation according to the advice of Hon'ble the Speakers of the State Assemblies and Hon'ble the Chief Justices of both the High Courts. Further, in order to carry out the purpose of the Act, guidelines dated 22nd March, 2001 (Annexure P -10) were also issued by the Reorganisation Cell under the signature of Mr. Raghuvendra Singh Sirohi, Principal Secretary, Government of Madhya Pradesh, for allocation of the employees.
In order to appreciate the arguments advanced by the learned Counsel for the parties, it is necessary to mention here the relevant service particulars of concerned Officers: Mr. A.K. Tiwari - - He was in the Above Super Time pay Scale since 1999. He retired on 31st October, 2001. Initially he opted for the State of Chhattisgarh. Accordingly, he was provisionally allocated to the State of Chhattisgarh w.e.f. 01 -11 -2000. However on 07 -09 -2001, one day before the meeting of Hon'ble the Chief Justices of the two High Courts, he gave in writing that he want to change his option and wanted to be allocated to the State of Madhya Pradesh. Accordingly, the two Hon'ble Chief Justices advised that he should be allocated to the State of Madhya Pradesh. But after that meeting in the month of October, he again withdrew his request for change of option for allocation. As his earlier request was already acceded and recommendations were already sent to the Central Government, he was finally allocated to the State of Madhya Pradesh. Mr. D.S. Jain - - On 01 -11 -2000, he was in the Super Time Pay Scale. He retired on 31 -07 -2002. His name was approved for grant of Above Super Time Scale on 08 -07 -2000 by the High Court of Madhya Pradesh. As there was no vacancy in this scale till 01 -11 -2000, therefore, he was not given this scale till the provisional allocation to the State of Chhattisgarh. However, he was granted Above Super Time Scale w.e.f 10 -08 -2001 by the High Court of Chhattisgarh.



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