Page 1

Non-Reportable

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 9018 OF 2013 (Arising out of S.L.P. (Civil) No. 13072 of 2006)

The Chief Secretary, Government of Bihar and others … Appellants

versus

Madheshwar Dhari Singh (Dead)  through LRs and others         …  Respondents

WITH

CIVIL APPEAL NO. 9019 OF 2013 (Arising out of S.L.P. (Civil) No. 21009 of 2006)

WITH

CIVIL APPEAL NO. 9021 OF 2013 (Arising out of S.L.P. (Civil) No. 21455 of 2006)

WITH

CIVIL APPEAL NO. 9022 OF 2013 (Arising out of S.L.P. (Civil) No. 5202 of 2007)

WITH

CIVIL APPEAL NO. 9024 OF 2013

Page 2

2

(Arising out of S.L.P. (Civil) No. 6160 of 2007)

WITH

CIVIL APPEAL NO. 9025 OF 2013 (Arising out of S.L.P. (Civil) No. 1237 of 2008)

WITH

CIVIL APPEAL NO. 9026 OF 2013 (Arising out of S.L.P. (Civil) No. 19535 of 2008)

WITH

CIVIL APPEAL NO. 9027 OF 2013 (Arising out of S.L.P. (Civil) No. 11176 of 2009)

WITH

CIVIL APPEAL NO. 9028 OF 2013 (Arising out of S.L.P. (Civil) No. 25548 of 2010)

O R D E R

Leave granted in all the special leave petitions.

2. Regard  being  had  to  the  commonality  of  the  issue  

involved in this batch of appeals, they were heard together

Page 3

3

and are disposed of by a singular order.   For the sake of  

convenience we shall  take the facts from the Civil  Appeal  

arising out of Special Leave Petition (C) No. 13072 of 2006.

3. The respondents knocked at the doors of the High Court  

of Jharkhand for  issue of an appropriate writ  directing the  

respondents therein not to act on the guidelines contained in  

letter  No.  28/43/2004-SRS  dated 29.3.2005 and further  to  

allow them to continue in service of the State till they attain  

the  age  of  sixty  years  and  to  pay  them  salary  of  the  

intervening period.  The question that was involved before  

the High Court was whether the Government servants, who  

were provisionally allocated and posted under the State of  

Jharkhand  and  attained  the  age  of  58  years  between  

26.10.2004  and  23.3.2005  and  finally  their  services  were  

allocated  to  the  State  of  Bihar  on  the  basis  of  Bihar  

Reorganisation Act, 2000 (for short “the 2000 Act”), should  

be allowed to continue in the service till they attain the age  

of sixty years.  The High Court referred to the fact-situation,  

the prescription of age, the notification issued by the Central  

Government under Section 72(2) of the 2000 Act, the final

Page 4

4

allocation of service and the notification No. 28/43/2004-SRS  

dated  29.3.2005  and  thereafter  reproduced  the  said  

notification which gave rise to the controversy.  It reads as  

follows: -

“No. 28/43/2004-SRS Government of India

Ministry of Personnel, P.G. and Pensions Department of Personnel and Training

***************

Lok Nayak Bhawan, Khan Market, New Delhi, the 19th March, 2005.

To The Chief Secretary, Government of Bihar, Patna

The Chief Secretary, Government of Jharkhand, Ranchi.

The  State  Advisory  Committee,  Bihar  is  in  the  process  of  allocation  of  State  Service  Personnel  between the successor  State of  Bihar/Jharkhand.  In  the  meantime,  Government  of  Jharkhand  has  raised the age of superannuation from 58 to 60  years  vide  their  notification  dated  26.10.2004  whereas the Govt. of Bihar has raised the age of  superannuation for its employees vide notification  on 24.3.2005.

Keeping in view the overall  situation, the matter  has  been  examined  and  the  undersigned  is  directed to advise that

Page 5

5

(a) those personnel who are posted in the State  of Jharkhand and have attained the age of 58  years  between  26.10.2004  and  23.03.2005  have been allocated to the State of Bihar, will  be  treated  as  superannuated  on  the  day  of  attaining the age of 58 years and they will get  their  pensionary/retiral  benefits  from  the  successor State of Bihar.

(b) those personnel who are posted in Bihar and  have attained the age of 58 years on or after  26.10.2004  and  have  retired  but  allocated  to  the  successor  State  of  Jharkhand  will  resume  their  duty/post  in  the  State  of  Jharkhand  and  they  will  get  salary  from  State  of  Jharkhand  w.e.f. the date of assuming the charge and their  service  will  be  counted  in  continuity  for  the  purpose of pensionary/retiral benefits but they  will not get any salary for the period for which  they have not worked due to their retirement in  the State of Bihar; and

(c) all  those personnel who have completed 58  years  of  age  on  or  after  26.10.2004  may  be  provisionally  relieved  to  the  respective  successor State of recommended in the Revised  Final Allocation list pending their final allocation  by the Central Government if no representation  has  been  received  against  their  proposed  allocation;

It is requested that the action taken in the matter  may  kindly  be  intimated  to  the  Central  Government immediately.

Yours faithfully, Sd/- (A.K. Srivastava)

Desk Officer

Page 6

6

Copy to the Chairman, State Advisory Committee,  Sichai Awas, 21 Beli  Road, Patna for information  action with reference to their  letter  No.Ra.Pa.Sa.  16/2004/106 dated 25.02.2005”

4. The High Court referred to the order passed by it earlier  

in Writ Petition (S) No. 1354 of 2005 and taking note of the  

decision  in  Brahmadeo  Prasad  Yadav  v.  State  of  

Jharkhand1 did not agree with the classification made by  

the Union of India and, in that context,  stated thus: -

“It could be seen from the guidelines, dated 29th  March, 2005 that the Central Government issued  two types  of  directions  in  respect  to  employees  who  attained  age  of  58  years  in  between  26th  October,  2004  and  23rd March,  2005.   Those  personnel  who  were  posted  in  the  State  of  Jharkhand and have attained the age of 58 years  between 26th October, 2004 and 23rd March, 2005,  get  the benefit  of  amended Rule  73 of  State of  Jharkhand since 26th October, 2004, having been  allocated to  the State of  Bihar,  were  treated as  superannuated on the day of attaining the age of  58 years.  On the other hand, those personnel who  were posted in Bihar and had attained the age of  58 years on or after 26th October, 2004 and had  actually retired, but they having allocated to the  successor  State  of  Jharkhand  were  allowed  to  resume their duty/post in the State of Jharkhand  after their retirement.

The Central  Government  has failed to show any  nexus  in  making  classification  amongst  two  similarly situated personnel in the matter of age of  

1 2005 (4) J.L.J.R. 185

Page 7

7

retirement,  though  the  burden  was  with  the  Central  Government  to  show  the  reasonable  classification  and  its  nexus  with  the  object  of  legislation,  but  it  failed  to  discharge its  burden.  We, accordingly, hold clause (a) of paragraph ‘2’  to  the  guidelines  dated  29th  March,  2005  as  arbitrary,  having  no  nexus  with  the  object  to  achieve.”

5. After  so  holding  the  High  Court  opined  that  in  the  

matter of cadre allocation the employees had no say and,  

therefore, the guidelines issued on 29.3.2005 should not be  

allowed to work to their detriment and, accordingly, directed  

that the State of Bihar should retain them in service till the  

age of 60 years and to pay full salary as they were forced to  

remain out of service.

6. We have heard Mr. Manish Kumar, learned counsel for  

the appellants and Mr. Nagendra Rai, learned senior counsel  

appearing for the respondents.

7. In course of hearing Mr. Manish Kumar, learned counsel  

appearing  for  the  State  of  Bihar,  submitted  that  the  

respondents had worked in  State of  Jharkhand and drawn  

salary after obtaining 58 years of age which was then the

Page 8

8

prescribed  age  of  retirement  in  the  State  of  Bihar  and,  

therefore, the direction of the High Court is erroneous.  It is  

further  submission  that  in  the  peculiar  circumstances  the  

decision was rendered by the Union of India and the High  

Court should not have opined that the classification was not  

justified.

8. Mr. Nagendra Rai, learned senior counsel appearing for  

the respondents,  supported the order  passed by the High  

Court.  

9. Having heard learned counsel for the parties we think  

that the cause of justice would be best subserved by issuing  

following directions: -

(i) The respondents shall get continuity of service till they  attained the age of 60 years and their pension shall be  accordingly fixed.

(ii) As far as arrears are concerned, the amount they have  received while continuing in service after the age of 58  years in the State of Jharkhand should be deducted.

(iii) After  deduction of the said sum, the arrears shall  be  computed for the rest of the period and 20% of that

Page 9

9

sum shall be paid to the respondent-employees within  three months.  The respondents shall not be entitled to  any interest thereon.

10. We  may  hasten  to  add  that  we  have  passed  the  

aforesaid order keeping in view the special features of the  

case  and  the  present  order  shall  stand  restricted  to  the  

respondents in present appeals only.

11. The appeals are disposed of in above terms without any  

order as to costs.

………………..……..J. [Anil R. Dave]

………………..……..J. [Dipak Misra]

New Delhi; October 01, 2013.