IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.16167 of 2009 1. Ashok Kumar Mishra S/O Sri Chiranjeev Mishra R/O Vill.- Kamalpur, P.S.- Raiyam, Distt.- Darbhanga 2. Bhogendra Jha S/O Late Mahadev Jha R/O Vill.- Laxmipur South, P.S.- Kalwahi, Distt.- Madhubani 3. Anil Kumar Sinha S/O Late Vijay Nandan Prasad R/O Mohalla- Jai Mahaveer Colony, Road No.-5, P.S.- Bahadurpur, Distt.- Patna 4. Arun Kumar Jha S/O Late Digambar Jha R/O Vill.- Lalpur, P.S.- Chhatapur, Distt.- Supaul Versus 1. The State Of Bihar 2. The Secretary Personnel And Administrative Reforms Department, Government Of Bihar, Patna 3. The Joint Secretary Personnel And Administrative Reforms Department, Government Of Bihar, Patna 4. The Secretary Finance Department, Government Of Bihar, Patna 5. The Chairman, Bihar Staff Selection Commission, Patna 6. The Secretary Bihar Staff Selection Commission, Patna 7. The Principal Secretary Human Resources Development Department, Government Of Bihar, Patna with CWJC No.16884 of 2009 1. Mithilesh Chandra Mishra S/O Shri Sri Narayan Mishra R/O Vill. & Post Gospur, P.S. Karjain Bajar, Distt.- Supaul 2. Vijay Kumar Jha S/O Late Kusheshwar Jha Mohalla Indrapuri West Road No. F, P.S. Shastri Nagar, Post B.V.College, Patna 800001 3. Arun Kumar Barnwal S/O Late Ram Lal Panday R/O Vill. & Post- Saura Jabar, P.S. Saura Jabar, Distt.- Purnia 4. Shailendra Kumar Yadav S/O Late Nawal Kishore Yadav Mohalla- Vijayapuri, Ramjaypal Nagar Gola Road Danapur, P.S. Rupaspur, Post Danapur, Distt.- Patna 5. Harishandra Paswan S/O Late Jhpasi Paswan Mohalla West Keshari Nagar, Road No. 8 Virkuvar Singh Chauk, Post Keshari Nagar, P.S. Digha, Distt.- Patna 6. Jay Prakash Upadhyay S/O Late Anirudh Upadhyay (Bari Dariyapur) Jamalpur, Post & P.S. Jamalpur, Distt.- Munger 7. Kamal Prasad S/O Late Sri Vishundev Prasad R/O Vill.- Madhubani, P.S. Minapur, Distt. Muzaffarpur 8. Jairam Singh Yadav S/O Late Raj Kishore Singh Yadav R/O Vill.- Hari Kishunpur, Post Dalsagar, P.S. Industrial Baxar, Distt. Baxar 9. Md. Kasim Ali S/O Late Md. Jainuddin Shah R/O Vill.- Manque Takaipar, Post & P.S. Manjhi Distt.- Chapra 10. Kapil Dev Paswan S/O Late Husaini Paswan R/O Vill.- Hajipur, Post Korari, P.S. Nagarnausa, Distt.- Nalanda 11. Ramji Sharma S/O Late Ganauri Mishtri R/O Vill.- Jamar, Post & P.S. Tekari, Distt.- Gaya 12. Vishnudev Arya S/O Late Triveni Prasad R/O Vill.- Hariharpur Tola, Visunpur, P.S. Sitamadhi, Distt.- Sitamadhi 2 13. Ratn Prasad S/O Late Ram Lakhan Rai Mohalla Bibiganj, Post Danapur, P.S. Danapur, Distt.- Patna 14. Vishvanath Prasad S/O Sri Chandrika Prasad Mohalla Saristabad West, Post Anisabad, P.S. Gardnibag, Distt.- Patna 15. Kapil Dev Thakur S/O Late Nand Kishore Thakur R/O Vill. Rajpur, Post Manipur, P.S. Madhepura, Distt.- Madhepura 16. Anil Kumar Singh S/O Late Dhupneshwar Rai R/O Vill. & Post- North Dhamaun, Via Mahnar, P.S. Patori, Distt.- Samastipur 17. Milan Devi S/O Late Pitambar Jha R/O Vill. & Post Chatara, P.S. Khajauli, Distt.- Madhubani Versus 1. The State Of Bihar 2. The Chief Secretary, Govt. Of Bihar, Patna 3. The Secretary, Deptt. Of Personnel & Administrative Reforms, Bihar, Patna 4. The Joint Secretary, Deptt. Of Personnel & Administrative Reforms, Bihar, Patna 5. The Principal Secretary, Deptt. Of Resources Development, Govt. Of Bihar, Patna 6. Bihar Staff Selection Commission, P.O. Veterinary College, Patna- 14, Patna Through Its Secretary 7. The Secretary, Bihar Staff Selection Commission, Patna, P.O. Veterinary College, Patna-14, Distt.- Patna ----------- For the Petitioners:- Mr. Chitranjan Sinha, Sr. Adv. Mr. Tej Bahadur Singh, Sr. Adv. Mr. B S Pandey, Adv. Mr. S.C. Jha- III, Adv. For the State:- Mr. Rajesh Kumar, Adv. Mr. Ratan Bose, Mr. A.A.G. VIII For the Commission:- Mr. S.S. Sundaram, Adv. ------------------ 4. 02.09.2011 I.A. No. 9198 of 2010 has been filed in C.W.J.C. No. 16167 of 2009 for substitution of the legal heirs of petitioner no. 1 stated to have been deceased on 31.1.2010 during the pendency of the writ application. Having heard counsel for the parties and considering that the claims may have financial implications for the family of the deceased, the I.A. application is allowed and the legal heirs mentioned in Paragraph-2 are permitted to be substituted in his 3 place. In C.W.J.C. No. 16884 of 2009 petitioner no. 1 is also stated to have been deceased during the pendency of the writ application. There is no substitution application on record. Learned counsel for the petitioner submits that liberty may be granted to the legal heirs to pursue matters if they so desire and mere non-substitution may not amount to completely non-suiting them. Mr. Bose, Additional Advocate General No. VIII does not oppose the submission. The petitioners are aggrieved by Clause-7 of the order dated 3.10.2008 which treats them as fresh appointees absorbed in the Bihar Staff Selection Commission (hereinafter referred to as the „Commission‟) not entitled to count their past services in the now dissolved Vidyalaya Seva Board (hereinafter referred to as the „Board‟). The Court on 5.1.2010 while declining interim relief had observed that the petitioners may pursue the issue in the meantime by a representation for their claim to similarity in treatment with regard to certain others in the Bihar State Dairy Corporation Limited. The representation has been rejected on 10.3.2011 which is challenged in C.W.J.C. No. 16167 of 2009 by I.A. No. 5564 of 2011. Having 4 heard counsel for the parties, the I.A. application is also allowed. In view of the nature of the order to be passed the Court does not consider it necessary to take note of the facts of the case except to the extent relevant. The petitioners in C.W.J.C. No. 16167 of 2009 are stated to be an appointees by the Board. The petitioners in C.W.J.C. No. 16884 of 2009 were appointed by the Bihar Education Service Commission (hereinafter called the „Education Commission‟) constituted under the Bihar Secondary Education Board Act, 1976. The Education Commission came to be replaced by the Board after promulgation of the Bihar Non Government Secondary School (Management and Control Taking Over) Act, 1981. The State Government subsequently promulgated the Bihar Non-Government Secondary School (Management and Control Take Over) Amendment Act, 2004. Section 3 of the amendment Act provides that all assets and liabilities of the Board shall vest in the Commission. All employees of the Board shall function on ad hoc basis in the commission till the State Government does not make a determination with regard to them in the manner provided in Section 3(4). 5 Section 3(4) of the Amendment Act relevant for the present controversy reads as follows:- “4. The State Government after constituting a committee of the officers not below the rank of Joint Secretary of Secondary Education, Department Personnel and Administrative Reforms Department and Finance department and to make identified such employees of the Board who have been appointed within the sanctioned posts after following prescribed procedure and the rules at the time of appointment in the Board and have possessed the minimum required qualification, shall appoint them on the post of equivalent pay scale of the State Government, under the control of Bihar State Staff Selection Commission, and the rest who were appointed not under the sanctioned post or have been appointed without possessing the required minimum qualification or without following required procedure of rules by the board, there functioning on ad hoc basis shall be terminated. The Service condition of appointees will be that, which is determined by the State Government. ” (emphasis added) The Statutory provision therefore is in two parts. The first part provides for continuance on ad hoc basis and identification of appointments made within sanctioned post and in accordance with Rules. Such persons after identification were required to be appointed on equivalent pay scale in the Commission. The others were to be terminated from their ad hoc status. Section 3(4) in the penultimate line highlighted provides for the second stage of the decision making with regard to those who are found eligible to be 6 absorbed in the Commission. The State Government is then required to decide on their service conditions which naturally includes issues of the nature of their absorption, counting of past services etc. The impugned order holds that in absence of any provision in the Amendment Act for counting of past services rendered in the Board, the petitioners were not entitled to the benefit. The statutory power was vested in the State Government to determine the service conditions. The respondents cannot refuse to exercise statutory powers for determination of the service conditions for absorption and simultaneously take the defence that in absence of such a decision, the petitioners were not entitled to that relief. The action of the respondents is in complete abdication of jurisdiction suffering from the vice of non-application of mind. Counter affidavits have been filed in both the cases. From the pleadings and documents annexed to the counter affidavit it is not the case of the respondents that any statutory determination has been done of the service conditions by the State Government in exercise of its statutory powers under Section 3(4) of the Amendment Act. The subsequent impugned order dated 10.3.2011 passed during the pendency of the writ 7 application therefore automatically becomes non est at this stage. Issues for violation of Article 14 at the time of absorption sought to be urged on behalf of the petitioners is a matter to more appropriately engage the attention of the State Government at the time that it takes such appropriate statutory decision under Section 3(4) of the Amendment Act. The matter has to be remanded to the State Government. The Court purposefully refrains from making any observation on the correctness of the order dated 10.3.2011 vis-a vis Article 14 of the Constitution of India at this stage. If power is vested in a statutory authority, the power has to be exercised by the authority first. The Court cannot usurp the statutory power of the authority. Mandamus shall lie not by taking a decision on behalf of the State Government but directing the State Government to exercise its powers in accordance with law. The stage of judicial review may or may not arise thereafter. In (2003) 7 SCC 546 (Guruvayoor Devaswom Managing Committee v. C.K. Rajan) it has been observed at Paragraph-67 as follows:- “67. Mr Subba Rao referred to N.M. Thomas for the proposition that court is also a “State” within the meaning of Article 12 but that would not mean that in a given case the court shall assume the role of the 8 executive government of the State. Statutory functions are assigned to the State by the legislature and not by the court. The court while exercising its jurisdiction ordinarily must remind itself about the doctrine of separation of powers which, however, although does not mean that the court shall not step in in any circumstance whatsoever but the court while exercising its power must also remind itself about the rule of self-restraint. The court, as indicated hereinbefore, ordinarily is reluctant to assume the functions of the statutory functionaries. It allows them to perform their duties at the first instance. 68. The court steps in by mandamus when the State fails to perform its duty. It shall also step in when the discretion is exercised but the same has not been done legally and validly. It steps in by way of a judicial review over the orders passed. Existence of an alternative remedy albeit is no bar to exercise jurisdiction under Article 226 of the Constitution of India but ordinarily, it will not do so unless it is found that an order has been passed wholly without jurisdiction or contradictory to the constitutional or statutory provisions or where an order has been passed without complying with the principles of natural justice. 76….The High Courts and the Supreme Court would not ordinarily issue a writ of mandamus directing the State to carry out its statutory functions in a particular manner. Normally, the courts would ask the State to perform its statutory functions, if necessary within a time frame and undoubtedly, as and when an order is passed by the State in exercise of its power under the statute, it will examine the correctness or legality thereof by way of judicial review.” The impugned order dated 3.10.2008 is therefore held to be vitiated only in so far as Clause-7 of the same is concerned and is set aside to that 9 extent. The order dated 10.3.2011 is therefore automatically not sustainable. The matter is remanded to the State Government in the Department of General Administration Department to take a decision in accordance with law by exercise of statutory powers under Section 3(4) of the Amendment Act. If the petitioners submit any representation supplementing their claims along with a copy of the present order, the respondents are required to consider the same in accordance with law. Keeping in mind the manner in which the respondents have either failed to appreciate the nature of their statutory powers or have declined to exercise the same, the consequences that ensue for the petitioners, the Court does consider it proper to direct that if the petitioners request for a personal hearing before a final decision, it shall be granted. The Court expects the respondents to take such appropriate decision in accordance with law within a maximum period of three months from the date of receipt/production of a copy of this order. The writ application stands allowed. P. Kumar ( Navin Sinha, J.)