G H STATE OF BIHAR & ORS. versus DR. CHAITRAYA KUMAR SINGH & ORS.
[2019] 9 S.C.R. 1060, Supreme Court of India, 2019
Outcome: Appeal(s) allowed (Granted)
Segment: Issues
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STATE OF BIHAR & ORS.
v.
DR. CHAITRAYA KUMAR SINGH & ORS.
(Civil Appeal No.5709 of 2019)
JULY 19, 2019
[DR. DHANANJAYA Y CHANDRACHUD AND
INDIRA BANERJEE, JJ.]
Service Law: Transfer – Re-organisation of two States –
Bifurcation of erstwhile State into the State of Bihar and the State of
Jharkhand – First respondent-Medical Officer initially allocated
to the State of Jharkhand – After three years on request by
respondent, allocation made to State of Bihar with mutual approval
of both States – However, the respondent continued to work as
employee of State of Jharkhand till he attained the age of
superannuation – Writ petition filed by respondent few days before
his superannuation, seeking issuance of directions to the State of
Jharkhand to relieve him for joining the State of Bihar – High Court
issued direction to State of Bihar to issue orders for accepting the
first respondent as its employee on transfer from State of Jharkhand
– Upheld by the Division Bench – On appeal, held: First respondent
took no steps to pursue his legal remedies when he was aggrieved
by the decision of the State of Jharkhand not to relieve him from
service so as to enable him to join the State of Bihar – He did not
espouse his rights and remedies under the law by seeking recourse
to the reliefs available at that stage, rather continued to work for
the State of Jharkhand for seven years and retired from service on
30 April 2017 – Order of the
Government of Jharkhand relieving
him on 31 July 2017 after his superannuation, is of no consequence
– Having now attained the age of superannuation in the State of
Jharkhand, the State to which he was originally assigned and where
despite the order of re-allocation the respondent worked for seven
years, it would not be appropriate to direct that he should be
absorbed by the State of Bihar – Thus, the High Court
erred in issuing the directions and the order of the High
Court set aside.
[2019]  9 S.C.R. 1060
1060
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CIVIL APPELLATE JURISDICTION: Civil Appeal No.5709 of
2019
From the Judgment and Order dated 05.11.2018 of the  High Court
of  Jharkhand at Ranchi in L.P.A. No. 197 of 2018
Devashish Bharuka, Ravi Bharuka, Ms. Sarvshree, Justine George,
Aditya Singhal,  Akshay Amritanshu, Advs. for the Appellants.
Kumar Shivan, Manoj Tandon, Ms. Tulika Mukherjee, Advs. for
the Respondents.
The Judgment of the Court was delivered by
DR DHANANJAYA Y CHANDRACHUD, J.
1. Leave granted.
2. This appeal arises from a judgment of a Division Bench of the
High Court of Jharkhand by which a direction that was issued by the
learned Single Judge to the State of Bihar to issue orders “for accepting
the first respondent as its employee on transfer from the State of
Jharkhand” has been upheld.
3. The first respondent was appointed as an Ayurvedic Medical
Officer on 26 May 1989 in  the  erstwhile  State  of  Bihar  prior to its
reorganization.  On  15  November 2000, the Bihar Re-organisation Act
resulted in the bifurcation of the erstwhile State into  the State of Bihar
and the State of Jharkhand. Options were invited from the employees
for allocation of their services to either of the resulting States. The first
respondent opted for the State of Bihar.
4. The Union government issued  certain guidelines on 8 June
2006 which envisaged that even after final allocations, employees could
be posted to either of the succeeding States with the mutual consent of
both States. On 9 February 2007,
the Union government  allocated  the
first  respondent to the State of Jharkhand upon  which  the  Government
of Bihar in the Department of Welfare issued a notification on 27 February
2007 requiring the first respondent to join the State of Jharkhand.  On 22
March 2007, the first respondent joined the State of Jharkhand and was
posted as an Ayurvedic Medical Officer in District Simdega.
5. On  11 January  2010, the first respondent made  an  application
for his re-allocation to the State of Bihar.  Both the States acceded to
STATE OF BIHAR & ORS. v.  DR. CHAITRAYA KUMAR
SINGH & ORS.
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the  request and on 30 July 2010, the  first  respondent  was  allocated  to
the  State  of  Bihar. Consequently, on 6 September 2010, the Home
Department in the Government of Bihar issued formal orders allocating
the services of the respondent to the State of Bihar.
6. The grievance of the first  respondent  is  that  though  he
submitted an application to the State of Jharkhand to relieve him on 6
October 2010, he was not relieved so as to enable him to join the State
of Bihar.
7. The factual position that emerges is that the first respondent
continued to work as an employee of the State of  Jharkhand  where  he
attained  the age of superannuation on 30 April 2017. A  few  days
before he superannuated, the first respondent filed a Writ  Petition before
the High Court of Jharkhand seeking the following reliefs:-
“(i) For a direction commanding upon the respondent no. 2 to
relieve the petitioner forthwith for joining to the State of Bihar, in
view of the Notification contained in Memo no. Sta./Jha./Vi.-244/
10-10416 dated 06.09.2010, issued by Home(Special) Department,
Government of Bihar, whereby the petitioner was allocated to the
State of Bihar with the consent of both the successor States.
(ii) To further direct the respondent no. 3 to accept the joining of
the petitioner in the State of Bihar in the light of Notification
contained in Memo No. Sta./Jha./Vi.-244/10-10416 dated
06.09.2010 issued by the Home
(Special) Department,
Government of Bihar.
(iii) To direct the respondents 1 and 2 to explain to this Hon’ble
Court as to under what power and authority the petitioner has not
been relieved as yet for joining to the State of Bihar, despite the
decision of allocation of the petitioner to the State of Bihar with
the consent of both the successor State.”
8. On 31 July 2017, after  the  first  respondent had retired, the
State of Jharkhand purported to  relieve  him  with  effect from 30 April
2017. The age of superannuation in  Bihar applicable  to  the  first
respondent is  67 years whereas in the  State  of  Jharkhand,  where  he
had  worked,  he   attained   the  age of superannuation upon reaching
the age of 60 years.
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9. The Writ Petition was allowed by the learned Single Judge and
the order has been  confirmed  in a Letters Patent Appeal by the Division
Bench.
10. Assailing the correctness of the judgment of the Division Bench,
Mr. Devashish Bharuka, learned counsel appearing on behalf of the
appellant submitted that in pursuance of the request of the first
respondent, an  allocation was made to the State of Bihar  with the
mutual  approval  of  both States.  However, despite his allocation to the
State of Bihar on 6 September 2010, the  first respondent  continued  to
work  in  the  State  of  Jharkhand  until  he retired in 2017.  According
to the appellant, no vacancy is available in the State of Bihar against
which the respondent can now be absorbed.   It has also been urged that
it was only in 2017 that the respondent instituted  the  writ  proceedings
to enforce the order  dated  6 September 2010 by which time he was on
the verge of retirement in the State of Jharkhand.  Hence, it has been
submitted that the first respondent having now retired from the State of
Jharkhand, cannot seek relief in pursuance of the order dated 6
September 2010.   Moreover, it  has been submitted that he was informed
on 12 October 2015 that his application for joining the State of Bihar
could not  be  accepted  in  the  absence  of  a  vacancy  and  even
thereafter, no steps were taken by the respondent to ensure that the
State of Jharkhand relieved him so as to enable him to join
the services
of the State of Bihar.  Mr. Bharuka urged that it was  only  with  a  view
to  seek  the benefit of an enhanced age of retirement that the first
respondent is now attempting to move over to the State of Bihar after
supernannuating from Jharkhand.
11. On  the  other hand, Mr. Manoj Tandon, learned counsel
appearing on behalf of the first respondent has urged that after the
allocation of his services to the State of Bihar  on  6  September 2010,
there  has  been  no  withdrawal  of that notification. Learned counsel
submitted that the first respondent made all efforts with both States:
with the Government of Bihar by seeking to join service and with the
Government  of  Jharkhand  by  seeking  to  be relieved.  Since  he  was
not  relieved  by  the  State  of  Jharkhand, it  was  urged  that  he  had
no option  but  to continue  in  service. Hence, it  has   been  submitted
that  so  long  as  the  notification allocating him to the State of Bihar
continues to  hold  the  field, there  was  no reason  for  the  appellants to
STATE OF BIHAR & ORS. v.  DR. CHAITRAYA KUMAR
SINGH & ORS. [DR DHANANJAYA Y CHANDRACHUD, J.]
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deny  him the  benefit  therein even  though  he  has attained the age of
superannuation in the State of Jharkhand.
12. The   facts  as  they  emerge  before  the  Court  indicate   that
upon  the reorganization  of   the  two  States  in  2000,  the  first
respondent  was  initially allocated  to  the  State  of  Jharkhand  on  9
February 2007.  In 2010, when the respondent sought a  re-allocation to
the State of Bihar, which  was permissible under the guidelines of the
Union government  with  the consent of the two States, his request was
acceded to and he was in fact allocated to the State of Bihar on 6
September 2010. The grievance of the first respondent evidently is that
the State of Jharkhand did not relieve him.  However, the first respondent
took no steps to pursue his legal remedies when he was aggrieved by
the decision of the State of Jharkhand not to relieve him from service so
as  to  enable him  to  join  the  State of Bihar. The first respondent did
not espouse his rights and remedies under the law by seeking recourse
to such reliefs as would have been available at that  stage. Instead, he
continued  to work for the State of Jharkhand for seven years and retired
from service on 30  April 2017.  The  order  of the Government of
Jharkhand  relieving  him  on  31 July 2017  after  his  superannuation, is
of no consequence.  The first respondent must, take the blame for not
having  pursued  remedies
available  to  him  under  the  law to ensure
that the State of Jharkhand issued an order relieving him so as to join the
State of Bihar.  Having now attained the age of superannuation in the
State of Jharkhand, the State to which he was originally assigned and
where despite the order of re-allocation  the  respondent  worked  for
seven  years, it would be manifestly inappropriate to direct that  he
should be absorbed by the State of Bihar.  Quite apart from the fact that
the State of Bihar  has  submitted  before  the  Court  that  they  have  no
vacancies,  the respondent  did  not  take  steps  to enforce his rights
under the order dated 6 September 2010 even after the State of Bihar
informed him on 12 October 2015 that it was unable to accept
his services.
13. We are of the view that the learned Single Judge  of the High
Court and Division Bench in appeal, were in error in acceding to the
prayer for relief on the part of the respondent.

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14. We accordingly allow the appeal and set aside the impugned
judgment and order of the High Court dated 5 November 2018. In the
circumstances, there shall be no order as to costs.
15. Pending application(s), if any, shall stand disposed of.
Nidhi Jain
                  Appeal allowed.
STATE OF BIHAR & ORS. v.  DR. CHAITRAYA KUMAR
SINGH & ORS. [DR DHANANJAYA Y CHANDRACHUD, J.]