IN THE HIGH COURT OF JUDICATURE AT PATNA MJC No.1225 of 2006 STATE OF BIHAR through the Secretary, Road Construction Department … Petitioner Versus 1. MANI KANT CHOUDHARY, Sri Nand Lal Chaudhary, resident of village + Post Barahat, District Banka (Bihar), at present Executive Engineer (Incharge) Nagar Nigam Dhanbad Urban Development Department, Jharkhand 2. Sri Dinanath Prasad, S/o late Hanuman Sao, resident of village and P.S. Dehri-on-sone, District Rohtas (Bihar), at present Incharge Executive Engineer, (waiting for posting) Department of Panchayati Raj, Jharkhand 3. Mathura Prasad, S/o late Munshi Singh, resident of village Mohiuddiapur, P.S. Islampur, District Nalanda (Bihar), at present Incharge Executive Engineer, R.E.O. Works Division, Giridih (Jharkhand) 4. Sri Nageshwar Mahto, S/o Sri Balaka Mahto, resident of Mohalla Hesal, P.O. Angarha, District Ranchi (Jharkhand), at present Incharge Executive Engineer, N.R.G.P. Jamshedpur, Jharkhand 5. Sri Prakash Narayan Singh, Son of Sri Laksham Prasad Singh, resident of Mohalla Hanuman Nagar, P.S. Kotwali, District Bhagalpur (Bihar), at present Incharge Executive Engineer, Building Division, Kodarma, Building Development Department, Kodarma, Jharkhand … Respondents. with MJC No.2328 of 2004 1. SRI DINA NATH PRASAD, son of late Hanuman Sao, resident of Dehri-on-sone, P.S. Dehri- on-sone, District Rohtas 2. Mathura Prasad, son of Late Munshi Singh, resident of village Mohiuddinpur, P.S. Islampur, District Nalanda 3. Nageshwar Mahto, son of Shri Balka Mahto, resident of Mohalla Hessal, P.S. Angara, District Ranchi (Jharkhand) … Petitioners Versus 1. THE STATE OF BIHAR, through Shri K.A.H. Subramaniyam, the Chief Secretary to the Government of Bihar, Patna 2. The Secretary, Mr. Shishir Sinha, Road Construction Department, Govt. of Bihar, Patna 2 3. Mr. Ravi Kant, the Secretary, Personnel and Administrative Reforms Department, Govt. of Bihar, Patna 4. Mr. Nagendra Nath Sinha, Secretary, Road Construction Department, Jharkhand, Ranchi … Opp.Parties. ----------- 15. 1.4.2010 Heard Mr. Shambhu Nath, A.C. to G.P.X, learned counsel for the petitioner, Mr. Awadhesh Kumar Mishra, learned counsel for O.P.Nos. 1 to 5 as also Mr. Dhurba Mukherjee, learned counsel for the State of Jharkhand. At the outset learned counsel for the petitioner supported by Mr. Dhurba Mukherjee, learned counsel for the State of Jharkhand, would inform this Court that O.P.No.1 Mani Kant Choudhary, O.P.No.4 Nageshwar Mahto and O.P.No.5 Prakash Narayan Singh have already been promoted on the post of Executive Engineer in the State of Jharkhand. It has, however, been stated that O.P.Nos. 2 and 3 have not been promoted by the State of Jharkhand on account of ongoing departmental proceeding against them. Counsel, therefore, submits that the order of this Court dated 2.7.2004 in C.W.J.C.No. 8772/2003 directing promotion of 16 persons in all including O.P.Nos. 2 and 3, namely, 3 Dinanath Prasad and Mathura Prasad respectively, needs to be modified in view of the subsequent event. Explaining such subsequent event it has been stated that all the opposite party Nos. 1 to 5 being the Engineers appointed in the erst-while State of Bihar were ultimately allocated in the State of Jharkhand in terms of section 72 of the Bihar Re-organization Act and therefore, their decision with regard to promotion on the post of Executive Engineer could have been taken only by the State of Jharkhand. Counsel explains that the cut-off date for new State of Jharkhand is referable to 15.11.2000 and any employee who is to be sent in terms of section 72 by way of cadre allocation will have to get his rights what was available to him on 15.11.2000. It has been stated that on 15.11.2000 all these 16 persons including O.P.Nos. 2 and 3 were holding substantive post of Assistant Engineer and therefore, the operative portion of the order of this Court dated 2.7.2004 in C.W.J.C.No. 8772/2003 needs to be modified in cases of O.P.Nos. 1 to 5 for consideration of their case in terms of 4 D.P.C. conducted by the State of Jharkhand. Mr. Awadhesh Kumar Mishra, learned counsel appearing on behalf of the writ petitioner now representing O.P.Nos. 1 to 5, on the other hand, would submit that this Court had directed in its order dated 2.7.2004 for acting on the earlier D.P.C. held on 21.4.2003 and therefore, either the State of Bihar or the State of Jharkhand should not be allowed to seek modification in the order by taking plea of the subsequent event merely because O.P.Nos. 1 to 5 were allocated the cadre of State of Jharkhand in the year 2006. Mr. Mishra also submits that when the recommendation same D.P.C. has been acted upon in the case of Engineers posted in the State of Bihar it would really amount to adopting double standard if the State of Jharkhand is allowed to have its own D.P.C. In the considered opinion of this Court such submission of the counsel for the writ petitioners, O.P.Nos. 1 to 5, has to be only noticed for its being rejected. It is a deeming fiction of the statute by which employees of all the erst-while State of 5 Bihar became the employee of the State of Jharkhand, inasmuch as Section 72 created a situation for apportionment of the existing employees, as on 15.11.2000. It was the Govt. of India which was the final authority, therefore, whatever rights were subsisting with the employee as on 15.11.2000 could only be the basis for claiming such right in the State to which his services are allocated. Added to that, the State of Bihar in terms of the order of this Court was definitely under obligation to abide by the recommendation of the D.P.C. but then the State of Jharkhand being neither a party to the aforementioned writ petition nor being in any way by the Statute bound by recommendation of the D.P.C. of the Bihar was under any obligation to act upon the same. In fact Mr. Mukherjee rightly points out that this aspect of the matter has been categorically raised that the recommendation of the D.P.C. of Bihar was never acted upon by the State of Jharkhand and in this case also the same was not acted upon even while permitting O.P.Nos. 1, 4 and 5 who were declared to be fit by the D.P.C. 6 of Jharkhand for being promoted on the post of Executive Engineer. In that view of the matter, this Court would not find any merit in any of the aforementioned submissions of Mr. Mishra that the State of Jharkahdn had to act upon the order of this Court dated 2.7.2004, especially when it was not even a party to the proceedings. The State of Bihar, therefore, cannot be held guilty for non- compliance of an order which is not capable of being complied on account of transfer of services of O.P.Nos. 1 to 5 from the State of Bihar to the State of Jharkhand. Accordingly, the order of this Court dated 2.7.2004 in C.W.J.C.No. 8772/2003 is modified to the extent that it will be made applicable only in case of Engineers who remained posted in the State of Bihar even after bifurcation of the cadre. Those persons including O.P.Nos. 1 to 5 amongst 16 who have already been allocated the State of Jharkhand, would be entitled for promotion only in view of fresh D.P.C. conducted by the State of Jharkhand. In the result, M.J.C.No. 1225/2006 7 is allowed to the extent indicated above and M.J.C.No. 2328/2004 filed by Shri Dina Nath Prasad, Mathura Prasad and Nageshwar Mahto is hereby dismissed. (Mihir Kumar Jha,J.) Surendra/