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REPORTABLE

        IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

    Civil Appeal No(s).  5709  of  2019   @SLP(C) No. 5485 of 2019

State of Bihar & Ors               Appellant(s)

                               Versus

Dr  Chaitraya Kumar Singh & Ors             Respondent(s)

JUDGMENT

Dr Dhananjaya Y Chandrachud, J

Leave granted.

This appeal arises from a judgment of a Division Bench of the High Court

of Jharkhand by which a direction that was issued by the learned Single Judge to

the State of Bihar to issue orders “for accepting the first respondent as its em-

ployee on transfer from the State of Jharkhand” has been upheld.

The first respondent was appointed as an Ayurvedic Medical Officer on 26

May 1989 in  the  erstwhile  State  of  Bihar  prior to its reorganization.  On  15

November 2000, the Bihar Re-organisation Act resulted in the bifurcation of the

erstwhile State into  the State of Bihar and the State of Jharkhand. Options were

invited from the employees for allocation of their services to either of the resulting

States. The first respondent opted for the State of Bihar.

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The Union government issued  certain guidelines on 8 June 2006 which

envisaged that even after final allocations, employees could be posted to either of

the succeeding States with the mutual consent of  both States. On 9 February

2007,  the Union government  allocated  the  first   respondent to the State of

Jharkhand upon  which  the  Government  of Bihar in the Department of Welfare

issued a notification on 27 February 2007 requiring the first respondent to join the

State of Jharkhand.  On 22 March 2007, the first respondent joined the State of

Jharkhand and was posted as an Ayurvedic Medical Officer in District Simdega.  

On  11 January  2010, the first respondent made  an  application  for his

re-allocation to the State of Bihar.  Both the States acceded to  the  request and

on 30 July 2010, the  first  respondent  was  allocated  to  the  State  of  Bihar.

Consequently, on 6 September 2010, the Home Department in the Government of

Bihar issued formal orders allocating the services of the respondent to the State of

Bihar.

The grievance of the first  respondent  is  that  though  he  submitted an

application to the State of Jharkhand to relieve him on 6 October 2010, he was

not relieved so as to enable him to join the State of Bihar.

The factual position that emerges is that the first respondent continued to

work as an employee of the State of  Jharkhand  where  he attained  the age of

superannuation on 30 April 2017. A  few  days  before he superannuated, the first

respondent filed a Writ  Petition before the High Court of Jharkhand seeking the

following reliefs:-

“(i) For a direction commanding upon the respondent no. 2 to relieve the petitioner forthwith for joining to the State of Bihar, in view of the Notification contained in Memo no. Sta./Jha./Vi.-244/10-10416 dated 06.09.2010, issued by Home(Special) Department, Government of Bi- har, whereby the petitioner was allocated to the State of Bihar with the consent of both the successor States.

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(ii) To further direct the respondent no. 3 to accept the joining of the petitioner in the State of Bihar in the light of Notification contained in Memo No.  Sta./Jha./Vi.-244/10-10416 dated 06.09.2010 issued by the Home (Special) Department, Government of Bihar.

(iii) To direct the respondents 1 and 2 to explain to this Hon’ble Court as to under what power and authority the petitioner has not been re- lieved as yet for joining to the State of Bihar, despite the decision of allocation of the petitioner to the State of Bihar with the consent of both the successor State.”

On 31 July 2017, after  the  first   respondent had retired, the State of

Jharkhand purported to  relieve  him  with  effect from 30 April 2017. The age of

superannuation in  Bihar applicable  to  the  first respondent is  67 years whereas

in the  State  of  Jharkhand,  where  he  had  worked,  he   attained   the  age of

superannuation upon reaching the age of 60 years.

The Writ Petition was allowed by the learned Single Judge and the order

has been  confirmed  in a Letters Patent Appeal by the Division Bench.

Assailing  the  correctness  of  the  judgment  of  the  Division  Bench,  Mr.

Devashish Bharuka, learned counsel appearing on behalf of the appellant submit-

ted that in pursuance of the request of the first respondent, an  allocation was

made to the State of Bihar  with the  mutual  approval  of  both States.  However,

despite his allocation to the State of Bihar on 6 September 2010, the  first respon-

dent  continued  to  work  in  the  State  of  Jharkhand  until  he retired in 2017.

According to the appellant, no vacancy is available in the State of Bihar against

which the respondent can now be absorbed.   It has also been urged that it was

only in 2017 that the respondent instituted  the  writ  proceedings  to enforce the

order  dated  6 September 2010 by which time he was on the verge of retirement

in the State of Jharkhand.  Hence, it has been submitted that the first respondent

having now retired from the State of Jharkhand, cannot seek relief in pursuance of

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the order dated 6 September 2010.   Moreover, it  has been submitted that he was

informed on 12 October 2015 that his application for joining the State of Bihar

could not  be  accepted  in  the  absence  of  a  vacancy  and  even thereafter, no

steps were taken by the respondent to ensure that the State of Jharkhand relieved

him so as to enable him to join the services of the State of Bihar.  Mr. Bharuka

urged that it was  only  with  a  view  to  seek  the benefit of an enhanced age of

retirement that the first respondent is now attempting to move over to the State of

Bihar after supernannuating from Jharkhand.

On  the  other hand, Mr. Manoj Tandon, learned counsel appearing on be-

half of the first respondent has urged that after the allocation of his services to the

State of Bihar  on  6  September 2010,  there  has  been  no  withdrawal  of that

notification. Learned counsel submitted that the first respondent made all efforts

with both States: with the Government of Bihar by seeking to join service and with

the Government  of  Jharkhand  by  seeking  to  be relieved.  Since  he  was not

relieved  by  the  State  of  Jharkhand, it  was  urged  that  he  had  no option  but

to continue  in  service. Hence, it  has   been  submitted   that  so  long  as  the

notification allocating him to the State of Bihar continues to  hold  the  field, there

was  no reason  for  the  appellants to  deny  him the  benefit  therein even  though

he  has attained the age of superannuation in the State of Jharkhand.

The   facts  as  they  emerge  before  the  Court  indicate   that  upon  the

reorganization  of   the  two  States  in  2000,  the  first  respondent  was  initially

allocated  to  the  State  of  Jharkhand  on  9 February 2007.  In 2010, when the

respondent sought a  re-allocation to the State of Bihar, which  was permissible

under the guidelines of the Union government  with  the consent of the two States,

his request was acceded to and he was in fact allocated to the State of Bihar on 6

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September 2010. The grievance of the first respondent evidently is that the State

of Jharkhand did not relieve him.  However, the first respondent took no steps to

pursue his legal remedies when he was aggrieved by the decision of the State of

Jharkhand not to relieve him from service so  as  to  enable him  to  join  the  State

of Bihar. The first respondent did not espouse his rights and remedies under the

law by seeking recourse to  such reliefs  as  would  have been available  at  that

stage. Instead, he  continued  to work for the State of Jharkhand for seven years

and retired from service on 30  April  2017.  The  order  of the Government of

Jharkhand  relieving  him  on  31 July 2017  after  his  superannuation, is of no

consequence.  The first respondent must, take the blame for not having  pursued

remedies available  to  him  under  the  law to ensure that the State of Jharkhand

issued an order relieving him so as to join the State of Bihar.  Having now attained

the age of superannuation in the State of Jharkhand, the State to which he was

originally assigned and where despite the order of re-allocation  the  respondent

worked  for  seven  years, it would be manifestly  inappropriate  to direct that  he

should be absorbed by the State of Bihar.  Quite apart from the fact that the State

of Bihar  has  submitted  before  the  Court  that  they  have  no  vacancies,  the

respondent  did  not  take  steps  to enforce his rights under the order dated 6

September 2010 even after the State of Bihar informed him on 12 October 2015

that it was unable to accept his services.    

We are of the view that the learned Single Judge  of the High  Court and

Division Bench in appeal, were in error in acceding to the prayer for relief on the

part of the respondent.

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We accordingly allow the appeal and set aside the impugned judgment

and order of the High Court dated 5 November 2018. In the circumstances, there

shall be no order as to costs.

Pending application(s), if any, shall stand disposed of.

…..…………................................J.           (Dr  Dhananjaya Y Chandrachud)

.…………………………...............J.             ( Indira Banerjee)

New Delhi July 19, 2019

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ITEM NO.40               COURT NO.10               SECTION XVII

              S U P R E M E  C O U R T  O F  I N D I A                        RECORD OF PROCEEDINGS

Petition(s) for Special Leave to Appeal (C)  No(s).  5485/2019

(Arising out of impugned final judgment and order dated  05-11-2018 in  LPA  No.  197/2018  passed  by  the  High  Court  of  Jharkhand  at Ranchi)

THE STATE OF BIHAR & ORS.                          Petitioner(s)                                 VERSUS

DR. CHAITRAYA KUMAR SINGH & ORS.                   Respondent(s)

(IA No. 32289/2019 - EXEMPTION FROM FILING O.T.,  IA No. 32290/2019 - PERMISSION TO FILE ADDITIONAL DOCUMENTS/FACTS/ANNEXURES)   Date : 19-07-2019 This matter was called on for hearing today.

CORAM :  HON'BLE DR. JUSTICE D.Y. CHANDRACHUD          HON'BLE MS. JUSTICE INDIRA BANERJEE

For Petitioner(s)                     Mr. Devashish Bharuka, AOR

Mr. Ravi Bharuka, Adv. Ms. Sarvshree, Adv. Mr. Justine George, Adv. Mr. Aditya Singhal, Adv. Mr. Akshay Amritanshu, Adv.                    

For Respondent(s) Mr. Kumar Shivan, Adv. Mr. Manoj Tandon, Adv.

                   Ms. Tulika Mukherjee, AOR                     

         UPON hearing the counsel the Court made the following                              O R D E R

Leave granted.

The  appeal  is  allowed  in  terms  of  the  signed  reportable

judgment.

Pending application(s), if any, shall stand disposed of.

(MANISH SETHI)                                  (SAROJ KUMARI GAUR) COURT MASTER (SH)                                  BRANCH OFFICER

(Signed reportable judgment is placed on the file)