S.K. Sharma vs State of Chhattisgarh and Others

Prashant Kumar Mishra, J.

Heard learned counsel for the parties.

Challenge in this petition under Article 226 of the Constitution of India is to the order dated 2-2-2013 (Annexure - P/1) passed by the Government of Chhattisgarh, Department of Law & Legislative Affairs/respondent No. 2 and the order dated 14-2-2013 (Annexure - P/2) passed by the Government of Chhattisgarh, Department of General Administration/respondent No. 3. By order dated 2-2-2013 the Department of Law & Legislative Affairs has held that the petitioner deserves to be relieved from the State of Chhattisgarh and there is no legal impediment in doing so and the Department of General Administration has directed the concerned administrative department to act in accordance with the directions of the Law Department.

The matter pertains to allocation of service of the petitioner to the State of Chhattisgarh or to the State of Madhya Pradesh, as the case may be, in view of the provisions contained in Section 68(2) of the Madhya Pradesh Reorganisation Act, 2000 (for short "the Act, 2000") concerning allocation of personnel in view of formation of successor State of Chhattisgarh.

Facts of the case, necessary to be referred for adjudication of the writ petition, are that pursuant to the enactment of the Act, 2000 and for giving effect to the provisions of Section 68(2), the Central Government issued instructions for allocation of personnel to the successor States of Madhya Pradesh and Chhattisgarh. Petitioner was initially tentatively allocated to the State of Chhattisgarh, but since he wanted to remain in the State of Madhya Pradesh, he applied for mutual allocation with one Shri U.S. Khare and acting upon the said application the petitioner was finally allocated to the State of Madhya Pradesh.

Subsequently, the petitioner moved another application for mutual allocation with Shri K.K. Pipri/respondent No. 4, as the petitioner wanted to stay back in the State of Chhattisgarh and the respondent No. 4 wanted to go back to the State of Madhya Pradesh. According to the petitioner, the said application was allowed and the petitioner was allocated to the State of Chhattisgarh on 8-8-2005 (Annexure - P/3). However, thereafter, the respondent No. 4 started canvassing that his application for mutual transfer with the petitioner stood rejected way back on 9-12-2002 and he has not moved any fresh application for his mutual transfer with the petitioner after formation of the new policy by the State of Madhya Pradesh on 29-4-2005 (Annexure - R6/5) and further that under the new policy also a person who has already availed the benefit of mutual allocation cannot re-apply and that both the persons seeking mutual allocation should be in the same cadre. Raising these grounds, the respondent No. 4 has preferred a writ petition before the High Court of Madhya Pradesh, in which interim relief has been granted in his favour. In the year 2013 the concerned administrative department of the State of Chhattisgarh referred the matter for necessary direction to the Department of Law & Legislative Affairs, on which the said Department has passed the order Annexure - P/1 to the effect that since the petitioner has been allocated to the State of Madhya Pradesh and his representation has already been rejected by the Central Government, there is no legal impediment in relieving the petitioner from the State of Chhattisgarh. Thus, this petition. 5. Learned counsel appearing for the petitioner would submit that no orders were passed on the application of the petitioner for mutual allocation with Shri Khare, therefore, it is not a case where the petitioner has availed the facility of mutual allocation twice. Learned counsel would further submit that the order passed by the State of Madhya Pradesh on 8-8-2005 allocating the petitioner to the State of Chhattisgarh has become final, therefore, the petitioner cannot be relieved from the State of Chhattisgarh. Learned counsel would next submit that although at the time of issuance of order dated 8-8-2005 the petitioner was working as Assistant Engineer and the respondent No. 4 was working as Superintending Engineer, but the crucial date for determining the status vis-�-vis is 1-11-2000 and on the said date both the persons were Assistant Engineers, therefore, there was no difficulty in allocating the petitioner to the State of Chhattisgarh.

Learned counsel would lastly submit that rejection of the representation of the petitioner by the Central Government on 29-6-2006 (Annexure - R6/10) filed by the respondent No. 6/Union of India, would not adversely impact the case of the petitioner because prior to that the State of Madhya Pradesh had already allocated the petitioner to the State of Chhattisgarh vide order dated 8-8-2005 pursuant to delegation of power by the Central Government.

Per contra learned Dy. Advocate General appearing for the State of Chhattisgarh/respondents No. 1 to 3, while opposing the writ petition, would submit that the opinion of the Law Department cannot be challenged in the writ petition and the petition is premature.

Despite service of notice, the State of Madhya Pradesh/respondent No. 5, has chosen not to appear before this Court.

Learned counsel appearing for Shri K.K. Pipri/respondent No. 4 as well as learned standing counsel appearing for the Union of India/respondent No. 6, would oppose the writ petition on the submission that the petitioner was tentatively allocated to the State of Chhattisgarh, however, acting on his application with Shri Khare for mutual allocation the petitioner was allocated to the State of Madhya Pradesh in the final allocation list and, as such, the same has become final and the second mutual allocation on 8-8-2005 is void ab initio because in the circular dated 29-4-2005 it is clearly mentioned in para 5 thereof that such cases in which final allocation has been made by the Central Government pursuant to prayer of mutual allocation, their cases shall not be considered for mutual allocation afresh.

Learned standing counsel appearing for the Union of India would further submit that the Central Government has rejected the petitioner''s representation on 29-6-2006 on the basis of recommendation/representation submitted by the State of Madhya Pradesh wherein the State of Madhya Pradesh clearly opined that the petitioner has already availed the facility of mutual allocation at the time of preparation of final allocation list, therefore, his application deserves to be dismissed. Thus, according to him, the State of Madhya Pradesh and the State Advisory Committee (for short "the SAC") vide its meeting dated 29-6-2005, rejected the representation, therefore, the petitioner cannot continue in the State of Chhattisgarh.

The issue involved in this petition for consideration is - whether the petitioner availed the benefit of mutual allocation at the initial stage and for that he suffers ineligibility to move fresh application for mutual allocation under the circular dated 29-4-2005?

On the above score, contention of the petitioner is that his application for mutual allocation with Shri U.S. Khare was never considered and no orders were issued on the said application and, as such, it is not a case of availing the benefit of mutual allocation twice.

Strongly controverting the aforesaid argument, the respondents would submit that in series of documents the petitioner has raised false pleadings that he has never moved any application for mutual allocation with Shri Khare. According to them, the petitioner has been changing colours before different forums in the form of different pleadings in representations, reply before the High Court of Madhya Pradesh and in the petitions before this Court. Pointing out to the documents filed along with their respective returns, the respondents would submit that orders were passed on the petitioner''s application for mutual allocation, therefore, the petitioner had, in fact, availed the facility of mutual allocation and his prayer for fresh mutual allocation could not have been considered even as per the circular dated 29-4-2005.

At the time of allocation of personnel to the successor States of Madhya Pradesh and Chhattisgarh in the years 2000, 2001 & 2002, initially tentative final allocation list was published vide Annexure R/4-15 in which it is shown that the petitioner opted to remain in the State of Madhya Pradesh, but was allocated to the State of Chhattisgarh and thereafter, the application for mutual allocation was moved by the petitioner and Shri U.S. Khare vide Annexures R/4-17 & R/4-18. Based on the said applications, the department recommended their mutual allocation (page 306 of paper book). Application written by the petitioner in his own hand writing is available in the record as Annexure R/4-19. The said application was dispatched on 28-9-2001/29-9-2001.

Subsequently, the final allocation list was published allocating the petitioner to the State of Madhya Pradesh and Shri U.S. Khare to the State of Chhattisgarh. This order available in the paper book as Annexure R/4-24 and R/6-1 clearly demonstrates that it was a final allocation in view of the applications for mutual allocation submitted by the petitioner and Shri Khare because in the said order against the name of Shri Khare it is mentioned that "Swap with 056/3611" (HOD & Emp. Codes of Shri S.K. Sharma, as is evident from Annexure R6/1) and similarly against the name of Shri S.K. Sharma it is mentioned that "Swap with 056/576" (HOD & Emp. Code of Shri U.S. Khare, as is evident from Annexure R6/1). This remark was necessary because otherwise the proposal for allocation initially prepared in the tentative final allocation list was maintained except those in which changes have taken place because of consideration of prayer for mutual allocation or otherwise.

The documents filed by the Union of India and the respondent No. 4 would make it manifest that after preparation of tentative final allocation list, the petitioner had, in fact, applied for mutual allocation with Shri Khare and acting on the said application his final allocation was made to the State of Madhya Pradesh. This also appears more probable because the tentative final allocation list mentions that the petitioner had opted for the State of Madhya Pradesh, but since he was proposed to be allocated to the State of Chhattisgarh he applied for mutual allocation with Shri Khare because he wanted to go to State of Madhya Pradesh.

In the circular issued by the State of Madhya Pradesh on 29-4-2005 it is provided in para 5 thereof, which is reproduced in Hindi:

This provision makes it categorical that such Government servant who has been finally allocated to one successor State on the basis of his application for mutual allocation, he shall not be entitled for fresh mutual allocation.

Since this Court has already found and which is proved from the documents submitted by the Union of India that the petitioner was finally allocated to the State of Madhya Pradesh on the basis of his application for mutual allocation with Shri Khare, his second application for mutual allocation with Shri K.K. Pipri/respondent No. 4 pursuant to the circular dated 29-4-2005 could not have been considered in view of the express provision in the circular debarring him from moving the application for mutual allocation.

This apart, it cannot be lost site of this Court that in the representation dated 28-2-2013 (Annexure P-14) the petitioner has mentioned the following in para :

In para. 8.5 of the writ petition a suggestive pleading is made as if the petitioner has never made any application for mutual allocation with Shri Khare. Thus, it is manifest that the petitioner has made false pleas in his representation and is thus guilty of suppresio veri and suggestio falsi.

On the teeth of his applications duly signed by him on typed paper and another application duly written by him as also the remark in the final allocation list that his final allocation is on the basis of Swapping with Mr. Khare, the petitioner should not have made such pleadings, which are untrue within his knowledge.

There is one more relevant and important aspect on this issue inasmuch as because of his earlier mutual allocation with Shri Khare and thereafter when the petitioner and the respondent No. 4/Shri K.K. Pipri moved fresh application for mutual allocation, the same was dismissed by the State of Madhya Pradesh on 9-12-2002 (Annexure - R/6-4) on the ground that he has already been allocated on account of mutual application, therefore, his repeated application with someone else i.e. respondent No. 4/Shri K.K. Pipri cannot be considered.

Learned counsel for the petitioner has also argued that the Central Government''s order dated 29-6-2006 would not effect the allocation of the petitioner to the State of Chhattisgarh by the order of State of Madhya Pradesh on 8-8-2005 because on the date of the order passed by the Central Government no application for mutual allocation was pending, however, from the document Annexure R/6-9, filed by the Union of India, it would appear that pursuant to the order passed by this Court in W.P. No. 1619 of 2004 filed by the petitioner, directing him to file a representation, the matter was taken up by the Central Government.

In course of said consideration, the State of Madhya Pradesh prepared a note that the petitioner has already been allocated to the State of Madhya Pradesh by mutual allocation with Shri Khare and the petitioner is Assistant Engineer whereas the respondent No. 4 is Superintending Engineer, therefore, prayer for mutual allocation cannot be considered.

After this note, the SAC vide its meeting dated 29-6-2005 considered the representation of the petitioner and resolved to be rejected. The SAC''s decision is available at pages 373 & 374 of the paper book, which clearly refers to the order passed by this Court directing the respondent authorities to decide the representation of the petitioner.

It is based on this recommendation/minutes of SAC, pursuant to the order passed by the High Court, the Central Government considered the representation of the petitioner and rejected the same on 29-6-2006 (Annexure R/6-10).

It has been argued by the petitioner that since before rejection of his representation by the Central Government on 29-6-2006, his allocation to the State of Chhattisgarh has been ordered by the State of Madhya Pradesh on 8-8-2005, the Central Government had no power or jurisdiction to pass any order on his representation.

This argument is referred only to be rejected in view of the law laid down by the Supreme Court in Union of India (UOI) Vs. G.R. Prabhavalkar and Others, wherein it has been held that the High Court has no power to go into the merits or otherwise of such equation of the posts, more so when action of Central Government was neither mala fide nor influenced by irrelevant and extraneous considerations.

Similarly, while considering the identical provision of the States Reorganisation Act, 1956 (for short ''the Act, 1956''), the Full Bench of the Kerala High Court in P.S. Menon Vs. State of Kerala and Others, has considered the authority of the Central Government in the matter of issuance of orders of final allocation and has held thus:

Arguments were also advanced on the questions as to whether the Central Government is the original and exclusive authority in the matter of integration of services or whether it was only an appellate authority or whether it was only an authority entitled to give directions as envisaged by section 117 of the Act leaving the matter of integration to the State Government which are under the provisions of Articles 162 and 309 read with Entry 3 in List II of the Seventh Schedule to the Constitution entitled to make provisions in relation to its services and the members of those services decisions taking conflicting views were cited before us. But we consider it unnecessary to go into this question in detail as it was not disputed before us by any of the petitioners or by the respondents in these petitions that the final authority in the matter of integration of services resulting from the States reorganization effected by the Act is the Central Government. We will therefore proceed on the basis that the ensuring of fair and equitable treatment envisaged by sub-section (5) of section 115 of the State Reorganization Act must be by the Central Government.

Thus, it is well settled that it is in the exclusive domain of the Central Government to pass orders with regard to allocation of employees/personnel between two successor States as a result of reorganisation and the supremacy of the Central Government in this regard is unimpeachable, therefore, the order dated 29-6-2006 passed by the Central Government would hold the field and the petitioner cannot be treated to have been allocated to the State of Chhattisgarh.

In Vasant Krishnarao Paturkar and Another Vs. D.R. Majramkar and Others, , the Supreme Court while dealing with equation of posts and preparation of common gradation list as a result of reorganisation of the States has held that it is the Central Government which has to determine principles governing equation of posts, prepare common gradation list and the High Court cannot direct the State Government to exercise those powers.

Even if for the sake of argument it is considered that the Central Government has directed the State Governments to consider cases of mutual allocation and pursuant thereto the State of Madhya Pradesh issued guidelines vide circular dated 29-4-2005 and, as such, acting under the said guidelines the State of Madhya Pradesh was functioning as a delegate of the Central Government, the petitioner''s case is not improved neither he is benefited because in the same circular it has been mentioned in para 5 thereof that where the order of final allocation has been made by the Central Government pursuant to the prayer for mutual allocation, such cases will not be reconsidered and fresh applications will not be entertained. Therefore, considering from any angle, the petitioner has failed to make out any case. When the representation of the petitioner was under consideration pursuant to the direction of this Court, the State of Madhya Pradesh could not have passed any order like the one, which has been passed on 8-8-2005 allocating the petitioner to the State of Chhattisgarh for various reasons e.g.:

� Firstly; fresh application for mutual allocation could not have been considered in view of provisions contained in para 5 of the circular dated 29-4-2005.

� Secondly; while the petitioner was working as Assistant Engineer, the respondent No. 4 was working as Superintending Engineer and, as such, they do not belong to the same cadre.

� Thirdly; their prayer for mutual allocation was once rejected by the State of Madhya Pradesh on 9-12-2002.

� Fourthly; in a writ petition filed by the petitioner this Court has issued a direction to the respondent authorities to consider his representation which was pending and in the meanwhile without deciding his representation the State of Madhya Pradesh could not have straightaway passed an order of allocation without affording opportunity of hearing to the respondent No. 4 who says that after issuance of the circular dated 29-4-2005 he has not moved any application for mutual allocation.

� Fifthly; the petitioner himself admits in para 4 of the rejoinder filed in this petition that his application for mutual transfer was rejected by the State of Madhya Pradesh on 9-12-2002.

As an upshot, the writ petition, sans substratum, is liable to be and is hereby dismissed. There shall be no order as to costs.