IN THE HIGH COURT OF JUDICATURE AT PATNA LPA No.1508 of 2009 1. THE STATE OF BIHAR, THROUGH THE CHIEF SECRETARY GOVT. OF BIHAR, PATNA 2. THE DEPUTY SECRETARY HOME (SPECIAL) DEPTT., GOVT. OF BIHAR, PATNA 3. THE SECRETARY DEPTT. OF ART, CULTURE AND YOUTH, GOVT. OF BIHAR, PATNA 4. THE DEPUTY SECRETARY DEPTT. OF ART, CULTURE AND YOUTH, GOVT. OF BIHAR, PATNA 5. THE DIRECTOR MUSEUMS, BIHAR, PATNA. Appellants. Versus 1. JITENDRA KARJEE S/O LATE JAI KRISHNA KARJEE R/O VILL & P.O. GANGEYA, P.S. KATRA, DISTT. MUZAFFARPUR. Respondent 1st Set. 2. THE UNION OF INDIA THROUGH THE SECRETARY DEPTT. OF PERSONNEL & TRAINING, MINISTRY OF PERSONNEL, PUBLIC GRIEVANCES AND PENSION, NORTH BLOCK, NEW DELHI 3. THE DEPUTY SECRETARY DEPTT. OF PERSONNEL & TRAINING, MINISTRY OF PERSONNEL, PUBLIC GRIEVANCES AND PENSION, GOVT. OF INDIA, LOKNAYAK BHAWAN, THIRD FLOOR, KHAN MARKET, NEW DELHI 4. THE STATE ADVISORY COMMITTEE CONSTITUTED FOR BIFURCATION OF CADRE IN STATE OF BIHAR AND STATE OF JHARKHAND THROUGH ITS CHAIRMAN, SINCHAI BHAWAN, BAILEY ROAD, PATNA. … Respondents 2nd Set 5. THE SECRETARY DEPTT. OF PERSONNEL & ADMINISTRATIVE REFORMS, GOVT. OF BIHAR, PATNA … Respondent 3rd Set. 6. THE STATE OF JHARKHAND THROUGH THE CHIEF SECRETARY GOVT. OF JHARKHAND, RANCHI 7. THE SECRETARY DEPTT. OF ART, CULTURE AND YOUTH, GOVT. OF JHARKHAND, RANCHI. … Respondents 4th Set. -------- For the Appellants : Mr. K. Ravish, Adv. ----------- PRESENT: HON’BLE THE CHIEF JUSTICE HON’BLE MR. JUSTICE MIHIR KUMAR JHA. 2 O R D E R (12.05.2010 ) As per Mihir Kumar Jha, J. I.A. No. 7660 of 2009 1. Having heard learned counsel for the appellants as also taking into account the facts and circumstances mentioned in this application, the delay of 44 days in filing of this appeal is condoned. 2. I.A. No. 7660 of 2009 is, accordingly, allowed. L. P. A. No. 1508 of 2009 3. As we have condoned the delay in preferring this appeal, we are also inclined to take the appeal for final disposal at the stage of admission itself. 4. In this intra-court appeal, the order dated 4.9.2009 passed by the learned Single Judge in Civil Review No. 262 of 2008 has been assailed on the ground that the liability imposed on the State of Bihar for payment of salary and retirement benefit to the respondent-writ petitioner in the order dated 22.8.2007 in CWJC No. 1904 of 2007 was wholly against the spirit of Bihar Reorganization Act, 2000 (hereinafter referred to as “the Act”) and therefore in all fairness the learned Single Judge ought not to have dismissed the review application. 3 5. In order to appreciate the submissions of learned counsel for the appellants, the relevant facts to be taken into account lies in a very narrow compass. The respondent-writ petitioner was appointed as Curator by the erstwhile State of Bihar and in terms of Section 72(2) of the Act his services were reallocated to the State of Jharkhand while he had been left with barely one and a half years of service inasmuch as his date of retirement was 31.7.2007. The order of the Government of India dated 9.1.2006 under Section 72(2) however was not acted upon by the State of Bihar for almost one full year inasmuch as the respondent-writ petitioner was relieved only by order dated 4.1.2007 with a stipulation that he would draw his salary from the month of January 2007 onwards from the State of Jharkhand. Said order of his allocation of service to the State of Jharkhand and the consequential order of relieving was assailed by the respondent-writ petitioner in CWJC No. 1904 of 2007 whereby by an interim order dated 9.7.2007, the officials of the State of Bihar were restrained from taking any coercive steps against the respondent-writ petitioner pursuant to his relieving order. Subsequently, the writ application was disposed of by order dated 22.8.2007 wherein the impugned order passed by the Government of India as also the relieving order passed by the Government of Bihar as against respondent-writ petitioner were 4 quashed with a direction to consider the respondent- petitioner’s services in the State of Bihar as also allowing pension and pensionary benefits to him. 6. It appears that as the respondent-writ petitioner had retired with effect from 1.8.2007, the Government of Bihar had passed an order dated 27.12.2007 granting extraordinary leave to the respondent- writ petitioner for the period 4.1.2007 to 31.7.2007 with a clear stipulation that as in the aforementioned period respondent-writ petitioner had not worked, he would not be entitled for payment of salary but the said period would be computable towards payment of post-retirement benefit including pension. Later on, the State of Bihar seems to have developed cold field and a review application was filed by the officials of the State of Bihar claiming that as the services of the respondent-writ petitioner was allocated in terms of Section 72(2) of the Act to the State of Jharkhand from the appointed date i.e. 15.11.2000, the liability for payment of entire retiral benefit will have to be borne by the State of Jharkhand and therefore the order of this Court dated 22.8.2007 in CWJC No. 1904 of 2007 so far it relates to making the State of Bihar liable for payment of post retirement benefit of respondent- writ petitioner should be reviewed and a direction should be issued to the State of Jharkhand. Such plea of the State of Bihar in Civil 5 Review No. 262 of 2008 was contested not only by the respondent- writ petitioner but also by the State of Jharkhand who had taken a plea that ever since 4.1.2007 when the respondent-writ petitioner had been relieved by the State of Bihar and upto 31.7.2007 the date on which he had retired from service he had neither reported for duty in the State of Jharkhand by submitting his joining report nor had worked there even for a day, he would not be entitled to get payment of pension from the State of Jharkhand. 7. During the pendency of this civil review application, the respondent-writ petitioner had filed a contempt application, MJC No. 435 of 2009 alleging non-compliance of the order of this Court dated 22.8.2007 in CWJC No. 1904 of 2007 and both the civil review application and the contempt application were heard by the learned Single Judge on 4.9.2009 wherein she had passed a reasoned order. The relevant portion reads as follows:- “…… Considering this situation, when the order was being passed no objection was raised either by the counsel representing the State of Bihar as well as the Union of India. After disposal of the writ application, it was incumbent upon the opposite party contemnor, to make payment of salary to the petitioners for the period for which he remained in State of Bihar after issuance of the order dated 4.1.2007 by the Deputy Secretary, Department of Art Culture and Youth, Government of Bihar till the date of superannuation. Further it was essential that his pension and pensionary benefit should have been decided. Since it was not being done, the 6 petitioner has filed this contempt application as favourable direction was there in the order dated 22.8.2007 to treat the petitioner’s service in the State of Bihar and to consider for allowing pension and pensionary benefit to the petitioner. Till the date this order has neither been challenged nor modified as such it is the duty of the opposite parties to comply the direction of this Court . Civil Review no.262 of 2008 has been filed by opposite party no.3 and 4 for reviewing the order dated 22.8.2007. I do not find any ground for reviewing the order as there is no apparent error in the order. It is not a fact that the order was passed without giving any opportunity to the opposite party and so far specific direction regarding treating the petitioner’s service in the State of Bihar is concerned was correct. In the facts and circumstances of the case since the petitioner never joined the cadre of State of Jharkhand right from the date of his joining and till the date of his superannuation, he remained in service of the State of Bihar, there is no merit in the review application. Accordingly this review application is dismissed. Counsel representing the opposite parties contemnors may file his show cause within four weeks showing compliance of the direction of this Court.” 8. The learned counsel for the appellants- State by placing reliance on the provision of Section 72 of the Act has submitted that the liability for payment of pension to an employee of erstwhile State of Bihar whose services were reallocated to the successor State of Bihar should not be imposed on the truncated and existing State of Bihar. He has further submitted that the respondent-writ petitioner having been relieved on 4.1.2007 and 7 there being no stay of such order of his being relieved by this Court, the respondent- writ petitioner cannot be permitted to claim for payment of salary for the period 4.1.2007 to 31.7.2007. 9. In the opinion of this Court, the grievance of the appellants as with regard to fastening of liability for payment of post- retirement benefit to the respondent-writ petitioner is wholly misconceived. It is an admitted fact that even after the order of Government of India dated 9.1.2006 allocating the service of the respondent-writ petitioner to the State of Jharkhand, he was allowed to continue to work on his post of Curator in Begusarai Museum and was in fact sought to be relieved only after one year in the month of January 2007 by an order dated 4.1.2007. Admittedly, the respondent- writ petitioner even after being relieved did not join the State of Jharkhand and as such he did not become the employee of the State of Jharkhand specially when his writ application was allowed by this Court by quashing the order of relieving dated 4.1.2007 in CWJC No. 1904 of 2007. It is true that such order was passed by this Court on 22.8.2007 on a date the petitioner had stood retired from service but then as he had never worked in the State of Jharkhand he could not have been asked to get the payment of retiral benefit from the State of Jharkhand. It is true that apportionment of pensionary benefits of the respondent- 8 writ petitioner in terms of Section 53 read with schedule 8 of the Act can be claimed by the State of Bihar from the State of Jharkhand but then in terms of clause 6 of Schedule 8 as the respondent-writ petitioner had retired from the State of Bihar, the retirement benefit have to be paid by the State of Bihar. This issue in fact has already been settled by this Court in the case of Murari Prasad Vs. State of Bihar & Ors., reported in 2006(1) PLJR 211(pat). 10. This Court, however, would immediately clarify that such payment of retiral benefit of the State of Bihar would remain subject to adjustment from the State of Jharkhand for which a complete mechanism has been provided in clause 4 of Schedule 8 of the Act envisaging concept of reimbursement of excess amount by the successor State to the State paying less on annual basis. 11. This court, therefore, does not find any error in that part of the order whereby and whereunder the learned Single Judge in the order dated 22.8.2007 in CWJC No. 1904 of 2007 had directed for payment of all retiral benefits by the State of Bihar. 12. The grievance of the appellants as with regard to fastening of liability for payment of salary of the respondent-writ petitioner for the period 4.1.2007 to 31.7.2007 seems to be wholly misconceived and misplaced inasmuch as there is no direction for 9 payment of salary in the order dated 22.8.2007 to the respondent- writ petitioner for the aforesaid period. As a matter of fact, once the respondent-writ petitioner had been relieved on 4.1.2007 and such order remained in force till the date of his retirement i.e. 31.7.2007, there would be nothing for the appellants to presume that there would be also liability on the head of the State of Bihar for payment of salary for the aforesaid period. The payment of salary is directly referable to the working of an employee and once the order of relieving had been passed which was never stayed by this Court, there would be little for the appellants to contend that by dismissal of the review application by the impugned order, the State of Bihar has also been held liable for payment of salary. As a matter of fact, when the State of Bihar itself treating the respondent-writ petitioner to be its own retired employee had passed an order on 27.12.2007 granting extraordinary leave from 4.1.2007 to 31.7.2007 with a clear stipulation that the respondent- writ petitioner would not be entitled for payment of salary for the aforesaid period, there would be nothing for the appellants to apprehend the liability for payment of salary of the writ petitioner for the aforesaid period specially when the aforesaid order dated 27.12.2007 has neither been assailed by the respondent-writ petitioner nor has been quashed by this Court. This aspect of the 10 matter, however, can be well explained by the appellants in their show-cause to be filed in the pending contempt application being MJC No. 435 of 2009 of respondent-writ petitioner. 13. Thus, for the reasons indicated above, we find no merit in this appeal and the same is accordingly dismissed. 14. There would be, however, no order as to costs. (Dipak Misra, CJ.) Patna High Court, Patna. Dated, the 12th of May, 2010 NAFR/(kanchan) (Mihir Kumar Jha, J.)