IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.6607 of 1997 SAROJ KUMAR DWIVEDI, S/O SRI KAMAL DWIVEDI, AT PRESENT POSTED AS REGISTRAR, JAGJEEVAN RAM INTITUTE OF PARLIAMENTARY STUDIES AND POLITICAL RESEARCH, 10 MANGALS ROAD, PATNA-1. ............PETITIONER. Versus 1.THE STATE OF BIHAR. 2.THE CHIEF SECRETARY, GOVERNMENT OF BIHAR, OLD SECRETARIATE, PATNA. 3.THE SECRETARY, PERSONNEL AND ADMINISTRATIVE REFORMS DEPARTMENT, GOVERNMENT OF BIHAR, OLD SECRETARIATE, PATNA. 4.THE COMMISSIONER CUM SECRETARY, EDUCATION DEPARTMENT, NEW SECRETARIATE, PATNA. 5.THE SECRETARY, BUILDING CONSTRUCTION AND HOUSING DEPARTMENT, GOVERNMENT OF BIHAR, PATNA. 6.THE ADDITIONAL SECRETARY CUM APPELLATE AUTHORITY, BUILDING CONSTRUCTION AND HOUSING DEPARTMENT, GOVERNMENT OF BIHAR, PATNA. 7.THE ESTATE OFFICER, BUILDING CONSTRUCTION AND HOUSING DEPARTMENT, PATNA. 8.THE COMPETENT AUTHORITY, BUILDING CONSTRUCTION AND HOUSING DEPARTMENT, PATNA. ..............RESPONDENTS. ----------- 07/ 17.05.2011 Heard Mr. Purushottam Jha, learned counsel for the petitioner and learned counsel for the State. In this writ application, the petitioner has assailed the order dated 29.01.1997, passed by the Estate Officer of the Building Construction and Housing Department of the Government of Bihar 2 cancelling the allotment of Government Quarter, Z-2, Shastri Nagar on the ground that the petitioner was not eligible for allotment of such a Government Quarter in terms of Government Residence Allotment (Patna Central Pool) rules 1986. The petitioner has further assailed the order dated 14.07.1997, passed by the Appellate Authority not only affirming the order passed by the Estate Officer dated 29.01.1997, but also holding that officers and employees of Jagjeevan Ram Institute of Parliamentary Studies and Political Research, Patna having no definite service condition would not be eligible for allotment of Government Quarter. Mr. Jha would further submit that it is an admitted fact that the petitioner was holding the post of Registrar in Jagjeevan Ram Institute of Parliamentary Studies and Political Research, Patna (hereinafter referred to as the Institute), which was initially taken over by the State Government by promulgation of an ordinance in the year 1986 and subsequently made an Act of legislature being Bihar Act 4 of 1988 3 whereunder the petitioner has also since been declared a Government Servant in terms of the order dated 06.08.2009, issued by Human Resources Development Department and thus it would be only unfair to say that the petitioner will not be entitled for allotment of a government accomodation from the quarters of Central Pool. Per contra, learned counsel for the State on the basis of the averments made in the counter affidavit would submit that the allotment of quarter from central pool under 1986 Rules could be made to only such eligible officers, who are working in the eligible offices as defined under Rule 3 (Cha) and 3(Chcha). Counsel for the State is also of the view that irrespective of the fact that Institute was a taken over by Government Institute and the petitioner was declared as a Government Servant, he would still not be entitled for allotment of Quarter from the Central Pool, inasmuch as, the Institute does not find place within the definition of "Patra Karyalay" as defined under Rule 3 (Cha) and 3(Chcha) of 1986 Rules. 4 In the considered opinion of this Court, the mere take over of the services of the petitioner in terms of Section 6(3) of the 1988 Act will not make him eligible officer, under Rule 3 (Cha) and 3(Chcha) of the 1986 Rules. It has to be noted that under the Bihar Act 4 of 1988, the Institute was sought to be taken over and transferred to the State Government and its assets were to vest absolutely in the State Government free from all encumbrances as also management and control of the Institute was to be exercised by the State Government. Thus by virtue of Section 3 of the Act, there would be no difficulty in holding that the institute became a Government Institute, inasmuch as, Section 3 reads as follows:- '3. Taking over the Institute:- (1) With effect from the date of enforcement of this Act the institution called Jagjiwan Ram Institute of Parliamentary Studies and Political Research, 10 Mangles Road, Patna-800001 shall stand transferred to and shall vest absolutely in the State Government free from all encumbrances and the management and control thereof shall thereupon be exercised by the State Government. (2). All assets and properties of the institution, Governing Body/Managing Committee/Association, whether movable or immovable including lands, buildings, laboratories, workshops, stores, libraries, instruments, machinery, vehicles, cash 5 balance, reserve fund, investment, furniture and fixtures and others shall on the date of taking over stand transferred to and vested in the State Government free from all encumbrances.' As with regard to the status of the teaching and/or other categories of the teaching/research staff of the Institution, Section 6 of the Act in the 1988 Act had provided a mechanism for determination of their status which reads as follows:- '6.Determination of the strength and terms and conditions of services of the teaching/research and other categories of staff of the institution. All the staff employed in the Institution shall cease to be the employees of the Institution from the date of vesting of the institution in the State Government under section 3: Provided that they shall continue to serve the institution on an ad-hoc basis till a decision under sub- section(3) is taken by the State Government. The State Government shall set up one or more committees of experts and knowledgeable persons staffing pattern and shall further examine the bio-data of each member of the teaching/research and other categories of staff of the Institution and shall ascertain whether strength, staffing pattern, appointment, promotion or confirmation sanctioned and made by the Managing Committee of the institution are proper and tenable and submit its report to the State Government after taking into consideration the requirements of the institution and other relevant matters including qualification, experience, research, degree etc. The State Government on receipt of the report of the committee or 6 Committees, as the case may be, shall determine the strength of the teaching/research and other categories of staff and the staffing pattern and shall decide in respect of each member of the teaching/research and other categories of staff on the merit of each case, whether to absorb him in Government service or whether to terminate his service or to allow him to continue on an ad-hoc basis for a fixed term or on contract and shall where necessary redetermine the rank, pay, allowance and other, conditions of service. A bare reading of Section-6 of the Act would go to show that the Government was required to constitute a committee for examining the records of the working employees of the Institute and to take a decision as with regard to absorption of the Staff of the Institute. The Government, in fact, in terms of Section 6(3) of the Act was also required to lay down the other condition of service. From the order dated 06.08.2009, it would be more than clear that while part of the aforesaid exercise of absorption of staff of the Institute under Section 6 of the Act has been completed, the terms and conditions of service of such taken over employees have yet not been finalised. In order to elucidate this aspect, it would be 7 necessary to quote the order dated 06.08.2009 in extenso, a copy whereof has been produced by Mr. Jha in course of hearing of this Case and has been taken on record which reads as follows:- ^^fcgkj ljdkj ekuo lalk/ku fodkl foHkkx vkns'k iVuk] fnukad 6-8-09 2@,e 1&16@2006&1282@foHkkxh; i=kad 03 fnukad 05-01-1987 }kjk fcgkj xSj ljdkjh f'k{k.k laLFkk ¼zxg.k½ v/;kns'k 1986 dh /kkjk 3 ds v/khu txthou jke lalnh; v/;;u ,oa jktuhfrd 'kks/k laLFkku] eSaXyl jksM] iVuk dks jkT; ljdkj esa fufgr djrs gq, bldk izca/ku vkSj fu;a=.k ljdkj ds }kjk fd;s tkus dk fu.kZ; fy;k x;k gSA 2- fcgkj xSj ljdkjh f'k{k.k laLFkk ¼xg.k½ vf/kfu;e 1988 dh /kkjk 6 dh mi/kkjk ¼2½ ,oa ¼3½ esa iznr 'kfDr;kas ds vkyksd esa xfBr lfefr dh vuq'kalk ij ljdkj ds vkns'kkuqlkj bl laLFkku esa dk;Zjr fuEukafdr inkf/kdkjh ,oa deZpkfj;ksa dh lsok vf/kxzg.k dh frfFk ls lek;ksftr fd;k tkrk gSA dz0 uke inuke 01- MkW0 ljkst dqekj f}osnh jftLVzkj 02- MkW0 jfoUnz dqekj oekZ fjlpZ Qsyks ¼fy0½ 03- MkW0 vkuUn dqekj pkS/kjh fjlpZ QSyks 04- Jh fefFkys'k izlkn Vadd 05- Jh eqjkjh frokjh fnup;kZ fyfid 06- Jh mes'k izlkn vkns'k iky 07- Jh lqjsUnz izlkn rFkSo 08- Jh cS/kukFk 'kekZ ^^ 09- Jh eqjkjh 'kj.k 'kqDyk rFkSo 10- Jh jke Hkjksl dkefr ekyh 11- Jherh lksefj;k nsoh Lohij ¼e`R;q½ 3- bu inkf/kdkfj;ksa@deZpkfj;ksa dh lsok 'kRrksZ dk fu/kkZj.k vyx ls fopkjk/khu gSA g0@& ¼vksadkj ukFk vk;Z½ ljdkj ds mi lfpo^^ (underlining for emphasis) From the reading of underlined portion of paragraph no. 3 of the aforesaid order, it becomes more than clear that the service condition of the taken-over Institute including that of the petitioner 8 on the post of Registrar is yet to be determined. It is however, a matter of grave concern that the State Government takes a decision for taking over of an Institute in utmost hurry and thereafter starts drawing back its hand and feet by way of repentance. Here in this case the Institute has been taken over w.e.f 05.01.1987, as is clear from the order dated 06.08.2009 but unfortunately the State Government has not defined the service conditions of the taken- over employees including that of the petitioner even after a lapse of 24 years. Such stalemate cannot be allowed to continue for an indefinite period. the service condition of every employee including that of the Institute has to be laid down in order to end uncertainly as was laid down by the Apex Court in the case of Amar Kant Chaudhary Vs. State of Bihar reported in AIR 1984 SC 531. The requirement of laying down of such service condition would be absolutely necessary that the petitioner in order to continue to retain Government Quarter 9 allotted to him in which he has been continuing on the strength of the interim order passed by this Court in this case. It is only when such service condition is laid then it would become clear as to whether the institute will be part of the Patra Karyalay as defined under Section 3(Cha)of the 1986 Rules reads as follows:- ^p-&^^ik= inkf/kdkjh** dk vFkZ gS ik= dk;kZy; esa dk;Zjr ,slk ljdkjh inkf/kdkjh tks fcgkj jkT; lsok dh Js.kh 2 ls uhps dk u gksA N-& ^^miyfC//;ksa*** dk vFkZ gS ekfld ftlesa lHkh izdkj ds eagxkbZ HkRrs] vUrfje lgk;rk] fo'ks"k osru rFkk 'kgjh {kfriwfrZ HkRRk 'kkfey gksA** It can therefore be said that unless the service condition of the employees of the Institute is laid down, it would remain uncertain as to whether the taken over employees of the Institute are Gazetted Officer or the Institute is a Government Office or an Autonomous Institution inasmuch as a taken over institute necessarily may not be the Office of the State Government and its Officer may not also be Gazetted Officer. Everything will therefore depend on the prescribed service condition of the employees of the Institute which as noted above has not been laid down in the period of last 24 years. Thus in view of the 10 aforementioned stalemate created by the respondents themselves this Court will have no other option but to remit the matter back to the Principal Secretary of the Human Resources Development Department to frame the service condition of the employees of the Institute at the earliest but not later than six months from the date of receipt/production of a copy of this order. Till such service conditions are framed, the petitioner will continue to occupy the Quarter in question i.e. Z-2, Shastri Nagar. If however on the basis of the service conditions framed the Institute will no longer be Patra Karyalay and consequently the petitioner will not be Patra Padhikari he will have to vacate the Quarter on an order to this effect being passed by the Principal Secretary of Human Resources Development Department. Thus this Court for the time being would direct the Respondents to keep the operation of impugned order in abeyance till a final decision is taken by the Principal Secretary, Human Resources Development Department in the manner indicated above. In 11 order to expedite the matter, this Court would also give liberty to the petitioner to place his case in a self contained representative along with a copy of this order before the Principal Secretary, Human Resources Development Department. With the aforementioned observations and direction, this application is disposed of. Let a copy of this order be given to Rakesh Kumar Samarendra, SC-XXI for its immediate communication to the Principal Secretary, Human Resources Development Department for its strict compliance. Ranjan (Mihir Kumar Jha,J)