- (1.) AT the centre of controversy in this petition is the scope and ambit of the power exercisable by the Government of Jharkhand under Section 85 of the Bihar Re -organization Act, 2000 (Act for short), in the light of the Constitutional provisions contained in Part XI (Chapter I) of the Constitution of India, particularly Articles 245 and 246.
(2.) BEFORE we go into the details of the main controversy forming the subject matter of this petition, we consider it advantageous to deal with a preliminary objection raised by Mr. Pradip Modi, learned counsel appearing for the respondents to the effect that the petitioner perhaps cannot be termed as a "person aggrieved" and that in any case, she is not similarly situated as the two teachers who were transferred from Bihar to Jharkhand and, therefore, the petition be dismissed as not maintainable. For the reasons which we indicate hereafter, we do not propose to go into the merits of the aforesaid contention because in our considered opinion, the locus standi of the petitioner by itself, in the peculiar facts and circumstances of this case and in view of the involvement of substantial question of constitutional law, may not be a factor warranting any relevance in so far as the fate of this petition is concerned. As would hereafter be evident, thus, whether the petitioner is personally aggrieved or not or whether she is similarly situated as others, are issues which ultimately would appear to be not germane to the points involved for consideration in this case. Let us first have a look at the background leading to the formation of the State of Jharkhand and some applicable and relevant provisions of the ,law by which this State came into being. Before 15th November, 2000, the State of Bihar was a State appearing at Serial No. 3 of the First Schedule to the Constitution of India. It was by virtue of the provisions contained in Part I of the Constitution that the Parliament enacted Bihar Re -organisation Act, 2000 (Act for Short) whereunder, on and from the appointed day, a new State known as the State of Jharkhand came into being. Section 3 of the Act is the provision by which this new State of Jharkhand comprising some of the territories of the erstwhile State of Bihar came into being. The expression "appointed day" has been defined in Section 2(a) of the Act to mean a day which the Central Government may, by notification in official gazette, appoint and it is the admitted case of all the parties that 15.11.2000 was the day "appointed" by the Central Government. It was on 15th November 2000 that the State of Jharkhand thus came into being. It shall be worthwhile here to take note of two definitions as occurring in Section 2 of the Act. Clauses (e) and (j) define the "existing State of Bihar" and "successor State" as under - "(e) "existing State of Bihar" means the State of Bihar as existing immediately before the appointed day; (j) "successor State", in relation to the existing State of Bihar, means the State of Bihar or Jharkhand."
(3.) PART -X of the Act relates to the subjects of legal and miscellaneous provisions. Section 84 in effect and substance stipulates and lays down that the change in the territories, as in effect and substance has been brought about by virtue of Sections 3 and 4 of the Act, would not affect the operation of laws with respect to such territories (as were in existence immediately before the appointed day) Section 85 (with which we shall deal extensively a little later) lays down that the appropriate Government may either by way of repeal or amendment, by order make such adaptations and modifications in any law as is in existence before the "appointed day" so as to facilitate its application in relation to the State of Bihar or Jharkhand, as the case may be. Undoubtedly, the expression "appropriate Government" includes the Governments of Bihar, Jharkhand as well as the Central Government. Section 86 being in the form of a residuary provisions, an all embracing one, lays down that if despite the permissible stipulations contained in Section 85, no provision or insufficient provision has been made for adaptation of any law, any Court, tribunal or authority required or empowered to enforce such law, may for the purpose of facilitating its application to the successor State construe the law in such a manner, without affecting its substance as it may deem necessary or proper with regard to any matter before the Court, Tribunal or the Authority. For the facility of ready reference, we reproduce herein below verbatim Sections 84, 85 and 86 of the Act, "84. Territorial extent of laws. - -The provisions of Part II of this Act shall not be deemed to have effected any change in the territories to which any law in force immediately before the appointed day extends or applies, and territorial references in any such law to the State of Bihar shall, until otherwise provided by a competent. Legislature or other competent authority be construed as meaning the territories within the existing State of Bihar before the appointed day. 85. Power to adapt laws. - -For the purpose of facilitating the application in relation to the State of Bihar or Jharkhand of any law made before the appointed day, the appropriate Government may, before the expiration of two years from that day, by order, make such adaptations and modifications of the law, whether by way of repeal or amendment, as may be necessary or expedient, and thereupon every such law shall have effect subject to the adaptations and modifications so made until altered, repealed or amended by a competent Legislature or other competent authority. Explanation. - -In this section the expression "appropriate Government" means as respects any law relating to matter enumerated in the Union List, the Central Government, and as respects any other law in its application to a State, the State Government. 86. Power to construe laws. - -Notwithstanding that no provision or insufficient provision has been made under Section 85 for the adaptation of law made before the appointed day, any court, tribunal or authority, required or empowered to enforce such law may, for the purpose of facilitating its application in relation to the State of Bihar or Jharkhand, construe the law in such manner, without affecting the substance, as may be necessary or proper in regard to the matter before the court tribunal or authority.";