IN THE HIGH COURT OF JUDICATURE AT PATNA LPA No.889 of 2009 1. The State of Bihar, through the Chief Secretary, Government of Bihar, Patna. 2. The Secretary, Home Department, Bihar, Patna. 3. The Secretary, Personnel and Administrative Reforms Department, Bihar, Patna. 4. The Deputy Secretary, Home (Special) Department, Bihar, Patna. …Appellants/Respondents Versus 1. Suman Gupta, aged about 42 years, son of Sri Jagdeesh Prasad Gupta, resident of Jagdeesh Printing Press, Banmankhi, Police Station- Banmankhi, District- Purnia. …Respondent/Petitioner 2. The State Advisory Committee through it is Chairman, Sinchai Bhawan, Bailey Road, Patna, Bihar. 3. The Chairman, State Advisory Committee, Sinchai Bhawan, Bailey Road, Patna, Bihar. 4. The Deputy Secretary, State Advisory Committee, Sinchai Bhawan, Bailey Road, Patna, Bihar. …Performa Respondents/Respondents. ----------- For the appellant : Mr. Rajesh Kumar Singh, A.C. to A.A.G.II For the respondent no.1: M/s Ashok Kumar Singh, Navendu Kumar, Manisha Singh, Advocates. ------------- 4/ 04.08.2009 Heard learned counsel for the appellant and learned counsel for the respondent no.1. By the order under appeal, the writ court has set aside orders under challenge dated 21.12.2005, 4.5.2006 and 13.12.2006 and has remitted the matter back to the authorities of the State of Bihar to arrive at a determination as to whether on the cut off date the petitioner held status of a general candidate or a backward caste category candidate in the service of the State of Bihar. There is further direction that further action shall follow in accordance therewith when the State Government shall submits its proposal to the State Advisory Committee/Central Government, as the case may be, within a maximum period of eight weeks from the date of receipt/production of - 2 - a copy of the order under appeal. It goes without saying that if the writ petitioner/respondent no.1 is held to be a general category candidate then he is to be retained in the State of Bihar and if he is held to be a backward caste category candidate, he will be allocated to the State of Jharkhand as per the other relevant facts and policy adopted by the authorities. On behalf of the State, it was submitted that the writ petitioner/respondent no.1 was treated as a backward caste category candidate because of his actual caste although he was appointed on the basis of merit against general category. According to the learned counsel for the State, this course of action is open in view of the criteria laid down in the decision dated 14.12.2002 contained in Annexure-4 to the writ petition. Learned counsel for the State has also relied upon a Division Bench’s judgment of Jharkhand High Court in WP (S) No.4658 of 2004, which has been annexed as Annexure-A to the counter affidavit filed in the writ application. On the other hand, learned counsel for the respondent no.1/writ petitioner has submitted that this court has taken a consistent view in a judgment reported in 2006(3) PLJR 548 (Mithilesh Narain Vs. Union of India & ors) and in another judgment dated 23.3.2007 in the case of Bhuwaneshwar Yadav Vs. Union of India (C.W.J.C.6424 of 2006) that State must confined itself to the facts emerging from the service record of its employees and on that basis alone it can proceed to treat an employee either as a general category employee or a - 3 - reserved category employee for the purpose of reallocation of cadre due to bifurcation of the State and creation of Jharkhand. It has further been submitted that the judgment of the Hon’ble single Judge dated 23.3.2007 in the case of Bhuwaneshwar Yadav (supra) has been confirmed by a Division Bench of this court in LPA No. 470 of 2007 disposed of on 13.5.2008. The judgments passed by the learned single Judge and by the Division Bench have been annexed as Annexure-2 and 3 to the Letters Patent Appeal. In the matter of allocation of cadre on account of creation of a new State, the principle is well settled that the Advisory Committee can frame criteria and the courts will not interfere with the decision taken on the basis of such criteria unless there be very good reasons justifying interference. In the present case, we have looked in the provisions relating to reservation in the services under the State of Bihar which are in force through a statutory Act since before the division of the State and they do not provide any benefit in the service matters such as promotion to members of backward caste category candidate after the initial recruitment. In other words, for all legal and practical purposes, the classification of employees into general or reserved category (other than SC/ST candidates) is obliterated after the initial recruitment. On that basis, it has been submitted on behalf of the respondent no.1 that allowing the State to go back into personal records and treat a person as a candidate belonging to reserved category would amount to a classification for purposes not permissible under the service - 4 - jurisprudence. We find merit in the submission advanced on behalf of the writ petitioner/respondent no.1. We are inclined to follow the earlier view of this court in the judgment already noticed above. In our view, the Division Bench of the Jharkhand High Court, with due respect, did not consider the issue whether the State Advisory committee or the other competent authority could be permitted to create unnecessary classification and that also not on the basis of the materials available in the service record of an employee. Even if the matter of classification is left out of consideration, it is clear that in the service matters the State can not be permitted to look beyond the service records for the purpose of allocation of cadre, otherwise, it will amount to extraneous consideration. It will also give scope to the authorities to be selective because they may opt to go behind the service record in some cases and may act only on the basis of service record in other cases. For all the aforesaid reasons, we find no merit in this appeal which is, accordingly, dismissed. JA/- (Shiva Kirti Singh, ACJ) (Anjana Prakash, J.)