- (1.) IN the year 1975, the State of Bihar established a Corporation, namely, Bihar Hill Area Lift Irrigation Corporation, commonly known as 'BHALCO under the Companies Act, 1956 with a share capital of Rs.10 crore with a view to provide facilities of irrigation to small and medium cultivators of Hill Areas of Chotonagpur and Santhal Pargana, and also for some of the districts of erstwhile Bihar. All these petitioners were permanent employees of BHALCO. When the State of Bihar came to be divided into existing State of Bihar and State of Jharkhand by Bihar Reorganization Act with effect from 15.11.2000, the State of Jharkhand in exercise of its power under section 85 of the Bihar Reorganization Act, 2000 adopted all the Rules and sub -rules of the Bihar Hill Area Lift Irrigation Corporation and renamed it as Jharkhand Hill Area Lift Irrigation Corporation, Ranchi known as 'JHALCO with the stipulations that the said Corporation would be developed in to a viable commercial organization with effect from 1.4.2002 so that the Corporation can arrange salaries of its employees from its own resources, the arrear of the salary pertaining to the period prior to 15.11.20000 shall not be paid by JHALCO and that establishment expenditure of JHALCO would be brought down and that no new appointments would be made rather the services of those employees who have been appointed irregularly would be terminated. A notification to this effect was issued by the Department of Water Resources, Government of Jharkhand, vide notification no.2580 dated 29.12.2001 (Annexure 1) Thereupon, Cabinet in its meeting gave post facto approval of the decision taken by the Department of Water Resources, Government of Jharkhand regarding adoption of BHALCO as JHALCO and even sanctioned a sum of Rs.5.25 crore for payment of the employees of JHALCO with effect from 15.11.2000 to 31.3.2002. Subsequently, JHALCO in the year 2003 issued notice in the local newspaper calling for the applications from the employees of BHALCO for absorption of their services in JHALCO, vide Annexures 4 and 5, though according to petitioners it was never required to do so as the services of the employees of BHALCO stood automatically absorbed by JHALCO by virtue of the provision of section 65 of the Bihar Reorganization Act, 2000 (hereinafter referred to as 'the Act). Further case of the petitioners is that in spite of absorption of the services of the employees of BHALCO, when they were not paid their salaries, they made representation before the authority and this matter came for discussion before the Assembly whereby Government was directed to pay arrears and current salary within 15 days. But when nothing was done in the matter, this writ application was filed in the year 2003 wherein prayer has been made to direct the respondent including JHALCO to treat the petitioners as the employees of JHALCO and to pay them current salary and also arrears of salary with effect from 15.11.2000.
(2.) FOR opposing the prayer of the petitioners the pleas as have been taken in the respective counter affidavits, supplementary counter affidavits and other affidavits by the JHALCO as well as State of Jharkhand are being enumerated hereunder: - That when the memorandum was put up by the officials of the Water Resources Department before the Council of Ministers, Jharkhand, a decision was taken to take over BHALCO in terms of section 65 of the Act and a copy of the said draft agreement was sent before the Government of Bihar for its acceptance and execution but no decision as yet has been taken by the Government of Bihar and as such, in absence of such agreement as envisaged under section 65 of the Act, BHALCO cannot be said to have been taken over by the State of Jharkhand.
(3.) THAT JHALCO has been incorporated under the Companies Act, 1956 on 22.3.2002 itself and as such JHALCO is not under obligation to pay current salary or the arrears of salary to the employees of BHALCO which as per the decision of the Central Government taken on 13.9.2004 continued to be under the control of Government of Bihar in terms of section 65 of the Act and the Government of Bihar has even initiated a proceeding for liquidation. That the Cabinet in its decision taken on 18.3.2002, though had sanctioned the amount for making payment to the employees BHALCO from 15.11.2000 to 31.3.2002 but when it was communicated by the concerned department that JHALCO has come into being only on 22.3.2002, the question of making payment with effect from 15.11.2000 does not arise, the Cabinet took a decision was taken on 22.8.2003 whereby earlier decision for making payment with effect from 15.11.2000 was given go -bye. That after the Jharkhand came into being, it needed experienced hand and, hence it was contemplated to take the services of the experienced employees of the BHALCO and therefore, an advertisement was issued calling for the applications from those employees of BHALCO who were willing to join the services of the JHALCO and pursuant to that, 398 employees of BHALCO submitted their applications/documents. Out of them, applications/documents of 302 employees were found to be in order by the Screening Committee and they were allowed to join and are being paid salaries from the date of their joining. That when the Central Government in its decision considered BHALCO to be under the control of the Government of Bihar, Government of Jharkhand annulled its earlier decision dated 29.12.2001 whereby BHALCO was taken over by the State of Jharkhand and under this situation, the petitioners, employees of BHALCO, can never be absorbed in the services of JHALCO particularly when JHALCO has got already 152 class IV employees in excess to its sanctioned strength and therefore, the question of making payment to the petitioners being employees of BHALCO never arises. ;