Jharkhand High Court

State Transport Employees ... vs The State Of Jharkhand Through Its ... on 29 September, 2023

                                       W.P.(S) No.3902 of 2015
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 IN THE HIGH COURT OF JHARKHAND AT RANCHI
            W.P.(S) No.3902 of 2015
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1. State Transport Employees Association, Bihar/Jharkhand through its General Secretary - Bijoy Dhari Kumar, S/o Late Sarjug Singh, resident of Mohalla - Kishan Colony, Anishabad, P.O.-Anishabad, P.S.-Phulwari Sarif, Dist-Patna (Bihar).

2. Bijoy Dhari Kumar, son of Late Sarjug Singh, resident of Mohalla - Kishan Colony, Anishabad, P.O.-Anishabad, P.S.- Phulwari Sharif, Dist-Patna (Bihar).

3. Birendra Prasad Mishra, son of Late Malwar Mishra, resident of Mohalla-Road No.4, Jai Prakash Nagar, Ashiyana, P.O.-Rajeev Nagar, P.S.-Rajeev Nagar, District- Patna (Bihar).

4. Amjad Hussain, son of Late Ahmad Hussain, resident of Mohalla-Beldar Toli, Dargah Road, P.S.-Sultanganj, District-Patna (Bihar).

5. Suresh Mahto, son of Late Chhatradhari Mahto, resident of Village and P.O.-Mokama Ghat, P.S.-Mokama Ghat, District-Patna (Bihar).

6. Durga Gope, son of Late Bipat Gope, resident of Village- Sarkardas Nawada, P.O.-Wazirganj, P.S.-Wazirganj, District-Gaya (Bihar).

7. Kanti Kr. Pathak, son of Late Ganesh Pathak, resident of At & P.O.- Karian, P.S.-Shivaji Nagar, District- Samastipur (Bihar).

8. Kailash Prasad Roy, son of Late Vishwa Nath Prasad Roy, resident of Urmila Enclave, Dhumsa Toli, Pragati Path, P.O. & P.S.-Chutia, District - Ranchi.

9. Benilal Sah, son of Shri Lal Bachan Sah, resident of Devi Mandap Road, Hesal, P.O.-Hehal, P.S.-Sukhdeo Nagar, District-Ranchi.

10. Bhola Singh, son of Late Baij Nath Singh, resident of Amrawati Colony, P.O. & P.S.-Chutia, District-Ranchi.

11. Shaligram Kumar Rakesh, son of Shri Ram Dular Kumar, resident of Village & P.O.-Pithouli, P.S.-Teghra, District-Begusarai (Bihar). ... ... Petitioners Versus

1. The State of Jharkhand through its Chief Secretary, Government of Jharkhand, Project Building, P.O. & P.S.- Dhurwa, District-Ranchi.

2. The State of Bihar through its Chief Secretary, Government of Bihar, Patna, P.O.-Patna, P.S.-Patna, District-Patna.

W.P.(S) No.3902 of 2015

3. The Principal Secretary, Department of Finance, Government of Jharkhand, P.O.& P.S. Dhurwa, District- Ranchi.

4. The Principal Secretary, Personnel & Administrative Reforms Department (at present known as "Samanaya Prashashan Department"), Government of Jharkhand, P.O.& P.S. Dhurwa, District-Ranchi .

5. Transport Secretary, Government of Jharkhand, F.F.P. Bhawan, Bhutal, P.O.& P.S. Dhurwa, District-Ranchi.

6. The Administrator, Bihar State Road Transport Corporation, Pariwahan Bhawan, Birchand Patel Marg, Patna (Bihar). ... ... Respondents

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CORAM:HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD

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For the Petitioner : Mr. A.K.Sahani, Advocate For the Resp. Nos. 1,3,4 & 5 : Mr. Sachin Kumar, A.A.G.-II For the Resp. No.2 : Mr. S.P.Roy, Advocate For the Resp. No.6 : Mr. Pankaj Kumar, Advocate

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Order No. 12/Dated 29th September, 2023

1. The writ petition is under Article 226 of the

Constitution of India whereby and whereunder direction

has been sought for upon the respondent State of

Jharkhand to treat the writ petitioners to be employees of

the Transport Department of the State of Jharkhand in

view of the policy decision taken for their absorption in the

service with effect from 01.07.2004. The claim of the writ

petitioner Nos. 2 to 11 is that since they have been

absorbed in service with effect from 01.07.2004 and hence,

they are entitled to all the benefits at par with the

employees working in the Transport Department of the

State of Jharkhand by extending continuity to their service.

W.P.(S) No.3902 of 2015

2. The brief facts of the case as per the pleading made

in the writ petition, which are required to be enumerated,

read hereunder as :-

The factual aspect involved in this case is that by

virtue of bifurcation of the State by coming into effect of

Bihar Reorganization Act, 2000 on 15.11.2000, two

separate States i.e., the successor State of Bihar and the

successor State of Jharkhand, came into existence, on or

after 15.11.2000. The Government of India vide order dated

14.01.2004, had apportioned the assets and liabilities of

the Bihar State Road Transport Corporation (in short

BSRTC)between the State of Bihar and the State of

Jharkhand in the ratio of 65:35. The BSRTC stood

dissolved with effect from 30.06.2004. The employees of

BSRTC, being allocated the cadre of Jharkhand, became

the employees of the State of Jharkhand with effect from

01.07.2004. The Department of Transport recommended

that the employees may be given the benefit of 5th and 6th

Pay Commission if they have been absorbed.

3. Prior to allocation of strength of employees the

petitioner No.2 to 11 were posted under the Bihar State

Road Transport Corporation on different posts. Under the

effect of the Notification No.1127 dated 30.06.2003 and

Notification No. 54 dated 14.01.2004 issued by the

Ministry of Road Transport & National Highways, Union of W.P.(S) No.3902 of 2015

India under the provisions of Section-62 (3) of the Bihar

Reorganization Act, 2000, the Bihar State Road Transport

Corporation stood dissolved with effect from 30.06.2004

wherein the manner of distribution of assets and liabilities

between both the successor States between both the

successor states have also been laid down. In this regard,

an Arbitration Committee was constituted by the Apex

Court headed by Hon'ble Justice (Retd.) Shri Saghir Ahmad

which submitted its report on 02.08.2007 and that was

accepted by both the States.

4. Vide order dated 12.08.2008, the Hon'ble Supreme

Court in Civil Appeal No.7290 of 1994 and its other

analogous cases was pleased to hold that in all other

respects the Report of the Arbitration Committee is

accepted and they have to implement the report at the

earliest.

5. Hon'ble Supreme Court approved the report of

Hon'ble Mr. Justice (Retd.) Saghir Ahmad, the

responsibility of the State Transport, Jharkhand is to

absorb all the allocated officers and employees of the State

Transport Jharkhand w.e.f. date of allocation,

i.e.01.07.2004 and provide continuity of services and

benefits under the old pension Scheme.

6. It is the case of the petitioners that the date of

allocation of employees under the State Transport is W.P.(S) No.3902 of 2015

01.07.2004 and date of coming into force the New Pension

Scheme is 01.09.2005 and, thus, the allocated employees

under the State Transport, Jharkhand are entitled to

Pension under the old Pension Scheme.

7. That, it is painful to mention that after lapse of

several months, the State Transport, Jharkhand issued a

Resolution No. 176 dated 28.02.2009 in compliance of

interim order dated 12.08.2008 passed by the Hon'ble

Supreme Court in C.A. 7290 of 1994 and vide said

Resolution dated 28.02.2009, the retired/ working

employees of four Divisions, namely, Ranchi, Jamshedpur,

Dumka and Dhanbad of the State Transport, Jharkhand

became employees of the State Transport, Jharkhand on

'as is where' basis, w.e.f. 01.07.2004 and they are deemed

to be absorbed under the State Transport, Jharkhand.

After issuance of said Resolution dated 28.02.2009, the

employees of the Head Quarter and Central Workshop were

bi- furcated in the ratio of 65:35 and accordingly, letter was

issued bearing Office order no. 152 dated 28.02.2009 by

which 35% employees of BSRTC Head quarter and Central

Workshop deemed to be the employees of the State

Transport, Jharkhand w.e.f. 01.03.2009, but their date of

allocation will be 01.07.2004 itself.

8. There were approximately 1500 employees in the

share of the State of Jharkhand in July, 2004. After about W.P.(S) No.3902 of 2015

five years, the State of Jharkhand issued a letter in respect

of 35% of the employees falling in its share wherein it was

clarified about creation of four Divisions in the State of

Jharkhand and 35% of the employees of Head quarter and

Central Workshop of the Bihar State Transport Corporation

to be 1124 employees which means that approximately 376

employees had either retired or died in those five years.

During pendency of the Contempt petition, 100s of

employees either retired or died and thus, approximately

600 employees were only left to be absorbed.

9. The State of Jharkhand issued a Notification dated

06.06.2013 wherein absorption was in the nature of

"appointment" whereby and whereunder the employees,

who were in service, have not been given the benefits which

they were entitled to. The State of Jharkhand offered

absorption vide the said Notification only to 107 employees.

However, there was no offer made for the remaining 502

employees despite long lapse.

10. It is the further case of the writ petitioners that

there were various categories in the Transport Corporation

such as Engineers, Station Manager, Depot

Superintendent, Divisional Transport Manager, Registrars,

Section Officers in Class-II. Clerks, Supervisors Audit

Accountant Mechanics, drivers, Assistants and Section

offices beside others, falling in Class -III and Security W.P.(S) No.3902 of 2015

Guards, Peon, Sweeper etc. falling in Class -IV. The State of

Jharkhand issued Notification in respect of only two

categories, i.e. Class-III and IV ignoring other posts and

Grades. The said Notification was against the ratio laid

down in various orders passed by the Supreme Court

which categorically provided that at the time of absorption,

engagement should not be refused or altered.

11. The employees employed in the Bihar State Rajya

Transport Corporation (BSRTC) are also entitled to the

benefits of the recommendations of the 5th and 6th Pay

Revision Committee and since their services were allocated

to the State of Jharkhand with effect from 01.07.2004, as

such, they are entitled to such benefits from the

Government of Jharkhand whereas the balance amount up

to 30.06.2004 is liable to be paid by the State of Bihar.

12. A High Level Committee was constituted by

Notification No.420 dated 03.06.2009 in the light of

recommendation given by Saghir Ahmad Committee

constituted by the Supreme Court for the purpose of

absorption of employees only in the quota of the State of

Jharkhand.

13. It was decided by the High Level Committee in its

meeting dated 05.09.2012 that the absorption of 475

employees, mentioned in Clause (a), is not possible and a

total of 196 employees mentioned in Clause (b) be absorbed W.P.(S) No.3902 of 2015

in the State Government against the vacancies in different

Government Departments with a condition that if they are

eligible for absorption.

14. The service of the petitioner Nos. 2 to 11 were

allocated to the State of Jharkhand in view of the aforesaid

Notification, but they already attained the age of

superannuation and therefore, they were entitled to the

benefits of superannuation along with all consequential

benefits payable to a Government employee.

15. On 07.06.2013, the Government of Jharkhand

issued Extraordinary Gazette/ Notification indicating

therein that the absorption of the employees would be

effected from the date of their contribution in their

respective Department after issuance of Gazette. Since as

per notification of the Government of India, the Bihar State

Rajya Transportation Corporation was bifurcated since

30.01.2004 and a portion of the employees had been

allocated to the Government of Jharkhand to be adjusted

in different Departments, as such, those allocated persons

are entitled to the benefits from 01.07.2004.

16. Thereafter, a writ petition being W.P.(C) No.337 of

2001 was filed before the Hon'ble Supreme Court which

was decided on 24.08.2011 and in view of the said order of

the allocated employees are to be absorbed w.e.f.

01.07.2004 with continuity of their services from the date W.P.(S) No.3902 of 2015

of their respective appointment and they are also entitled to

all benefits as has been granted to the regular and

permanent employees of the State of Jharkhand and thus

they are entitled to the benefits of Assured Career

Progression Scheme as amended up to date and other

benefits including the benefits under old Pension Scheme

as available to the employees of the Jharkhand State.

17. Mr. A.K.Sahani, learned counsel appearing for the

petitioners, has referred the order passed by the Division

Bench of this Court passed in L.P.A. No.169 of 2020

whereby and whereunder similar issue has been decided

holding the employees working under the Corporation to be

absorbed in services under the Transport Department of

the State of Jharkhand.

18. The issue which was considered in the said Letters

Patent appeal is that as to whether the benefit of

absorption by treating their past service to be in continuity

of service after absorption was the core issue.

19. The Division Bench of this Court, in the aforesaid

Letters Patent Appeal, has decided the issue in favour of

the absorbed employees holding therein that the past

service rendered by them under the Corporation will be

treated to be continuity in service and in that view of the

matter, one or the other employees working under the

Corporation is to be given the benefit of absorption with the W.P.(S) No.3902 of 2015

continuity of service to be counted for the purpose of

pensionary benefit.

20. It has been informed that the aforesaid order was

challenged by the State of Jharkhand before the Hon'ble

Apex Court vide S.L.P. No. 20636 - 20637/2022 but the

said Special Leave Petition was also dismissed.

21. Mr. Sahani, learned counsel appearing for the writ

petitioners, on the aforesaid ground, has submitted that

since the similar issue has been decided and hence, this

writ petition may also be disposed of in terms of the

aforesaid judgment passed in L.P.A. No.169 of 2020 which

has been affirmed by Hon'ble Apex Court in S.L.P.

No.20636 - 20637/2022.

22. Mr. Sachin Kumar, learned Additional Advocate

General-II, appearing for the State of Jharkhand is fair

enough to submit that the issue has already been decided

by the Division Bench of this Court confirmed by the

Hon'ble Apex Court.

23. Mr. S.P.Roy, learned counsel for the respondent

State of Bihar and Mr. Pankaj Kumar, learned counsel for

the respondent BSRTC have also submitted that the issue

has already been decided up to the Hon'ble Apex Court.

24. This Court has heard learned counsel for the

parties.

W.P.(S) No.3902 of 2015

25. This Court has perused the factual aspect involved

in this case wherefrom it is evident that the writ petitioners

are claiming benefit of continuity in service due to the

decision of the State Government for absorption in service

to the effect that the past service rendered by them be

treated to be continuity in service.

26. This Court has also perused the order passed by the

Division Bench of this Court wherein similar issue has

been decided, for ready reference the relevant paragraphs

of the said judgment is being referred herein :-

"20. This Court, after considering the fact about implication of absorption as also based upon the observation made by Hon'ble Apex Court, is of the considered view that once the writ petitioners were absorbed under the regular establishment of the State Government, the State authority cannot be allowed to take the plea not to count the past service for the purpose of giving the pensionery benefit. Otherwise, there will be no difference in between fresh recruitment and the absorption. If the cut-off date as on 01.07.2004 has been fixed to be the date of absorption and from that date the consideration of grant of benefit, as per the plea of the State authorities will be accepted, it will be nothing but the absorption of the writ petitioners will take the shape of fresh appointees and in that condition, the decision of the State authorities through the Cabinet of absorbing the writ petitioners, will be frustrated since once the Cabinet took decision for absorption, the concerned authority of the concerned Department is not competent to put a word upon the decision of the W.P.(S) No.3902 of 2015

State Government, which is not permissible even under the Rules of Executive Business."

27. This Court has also perused the order passed by the

Hon'ble Apex Court in S.L.P. No. 20636 - 20637/2022

wherein while dismissing the Special Leave Petition, the

Hon'ble Apex Court has been pleased to grant four months'

time to comply with the order, for ready reference the order

passed by Hon'ble Apex Court is being referred herein

which reads hereunder as :-

"Though, the matter is posted for consideration of I.A. No.40060/2023, whereby the petitioners have sought interim relief but, having regard to the circumstances of the case, we have heard the learned counsel for the parties on the question as to whether any leave be granted in these matters.

Having heard learned counsel for the parties and having examined the matters in totality, we are satisfied that the view taken by the learned Single Judge of the High Court, as approved by the Division Bench of the High Court, is a plausible view of the matter and no case for grant of leave is made out. Therefore, these petitions are required to be dismissed.

However, we have also taken note of the submissions that the petitioners have, otherwise, taken steps to implement the orders impugned (of course, subject to the outcome of these petitions) but, completion of the process is likely to take some time, in view of various aspects of verification of record being involved, concerning a large number of employees.

In that view of the matter, and particularly when these petitions are being dismissed today, we W.P.(S) No.3902 of 2015

deem it just and appropriate to grant further time to the petitioners to carry out complete compliance. For that matter, the petitioners are granted further time to carry out compliance within four months from today.

For what has been provided hereinabove, we would request the High Court to keep the proceedings in the pending contempt matter in abeyance for a period of four months so as to give the petitioners adequate time to carry out complete compliance and any requirement of personal presence of the officers concerned may be dispensed with.

It would be required of the petitioners to report compliance to the High Court within four months from today.

Subject to the relaxations and requirements foregoing, these petitions stand dismissed.

Pending applications also stand disposed of."

28. Learned Additional Advocate General-II appearing

for the State of Jharkhand has also submitted that in

terms of the order passed by the Division Bench of this

Court in L.P.A. No.169 of 2020, the State Government is

taking endeavor to comply the said order.

29. This Court, taking into consideration the aforesaid

fact, is of the view that the instant writ petition also

deserves to be allowed.

30. Accordingly, the instant writ petition is allowed.