AI Insights
The case involves two writ petitions filed by Dilip Deshmukh and Dhanendra Swaroop Jain against the State of Chhattisgarh and others, challenging the allocation of judicial officers B.K. Shrivastava and V.K. Shrivastava to Chhattisgarh following the bifurcation of Madhya Pradesh. The petitioners argued that the allocation was not in accordance with the law and violated principles of natural justice. The respondents, including the Central Government and the High Courts of Madhya Pradesh and Chhattisgarh, defended the allocation process as being legally sound and procedurally correct. The court's decision focused on the legality of the allocation process under the M.P. Reorganisation Act, 2000, and the adherence to constitutional provisions.
Appeal Details
Counselvise Citation
[2003] 140 COUNSELVISE.COM (IT) 807429 (HC-CHHATTISGARH)
Assessee PAN
Bench
Appeal Number
CRN Number
Appellant
Respondent
Appeal Type
Others
Pronouncement Date
06-12-2003
Assessment Year
misc
Judgement Text
"'s^ ^ww^, ^i^ww, 'fN^rrey -...12.69/2001 'Wi 200 sn^r'g^nw ^afttT •WRff -4 •fe'ZT T^RZR i? STfitTq SII^a DB; HON'BLE SHRI FAKHRUDDlti AND HON.'BLE SHRI L .C. BHADbO.JJ 6-12-2003 Qrders passed, in open Osurt, and dated. Judge Sd/- L.C. Bhadoo Judge •^istfe^ 's^. ;:/ > '•1 n^ Ll_-y A.F.R, HIGH COURT OF JUDICATURE AT BILASPUR, CHHATTISGARH WWT^PETITION N0.414 OF 2002 ;.-^ \"'r- ^.- '•- \"t- Dilip Deshmuldi - Versus - ' State of Chliattisgarh and others AND WRITPETITION N0.1269 OF 2001 Dhamicndra Swaroop Jaiu - Versus - Union of India aad others POST FOR ORDER ON 6^ OF DECEMBER, 2003, Sd/- , L.C.BHADOO Judge ?^,^12-2003 -^,, '/ HIGH COURT OF JUDICATimB AT BILASPUR. CHHATTISGARH Writ Petitioa No.414 of 2002 PETITIONER: Dilip DcsluuLikli, S/o I^ate Rao Sahcb nesTimiikti, Aged about 54 yeara, District Judge, On deputation as Lcgal Advisor to the Govemor of Chhattisgarh, R/o Jail Road, Raipur (C.G.) Versus \"KESPONDENTS; &. 7. 8, State of Chhattisgarh, Throueh; Priiicipal Secretaiy, Department of Law aad Legislative Affairs, Maiitralaya, Raipur(C.G.) Thc High Couil of Chhattisgarh, BUaspiu-, Through: Registrar General. State of Madhya Pradesh, Through: Principal Secretary, Department of Law and Legislative AfFairs, Vindhyachal, 1st Kloor, Bhopal (M.P.) The High Court of Madhya Pradesh, Jabalpur, Throueh: Registrar General. Union of India, Throueh: Secretary to the MiDistiy of Personnel, PubUc Grievances and Pension, Department of Personnel and Trauiiag, Lok Nayak Bhavaa, 3ri Floor, Khan Market, NcwDclhi- 110003 Shri B.K. Shrivastava, Registrar Geiieral, High Court of Chliattisgarh, Bilaspur (C.G.) ShriV.K. Shrivastava, District & Sessions Judge, Raipur (C.G.) Shri Yogesh Mathur, Addl. Distdct & Sessions Judge Sakti, District: Bilaspur (C.G.) -7^8 9. Shri P.K. Dave, Addl. ChiefJudicial Magistrate, Raipur (C.G.) 10. ShriG.L. Sonwani, ChiefJudicial Magistrate, Kawaidha, District: Rajnandgaon (C.G.) 11. Shri K. Vmod Kujur, CivU Judge, Class-I, Dhamtan, Distt.; Raipur (C.G.) 12. Shri Dilesliwar Rafhia, Additional CivU Judge, Class-II, Si.u-ajpur, Distt. :Ambikapur-Surguja (CG) 5.b) Union of Indja, Through: Mmistiy of Law aad Justice, Goveminent of India, New DeUu. Present: - Mr. RajendraTiwari, Sr. Advocatewith Mr. P. Diwaker, Advocate: Mr. Sanjay K, Aganval, Deputy A.G.: Mr. Maiuudra Shrivastava, Advocate; Mr. Prashaat Mishra, Advocate: Mr. V.V.S. Murfhy, Addl. Central Govt Staitdiag Counscl: Mr. K.A. Ansari, Advocate: Mr. Malay Kuinar Bhaduri, Advocate: Mr. R.S. .Jaiswal, Advocate: For fhe petitioner For the State/respondent No. 1 For responden.ts 2 & 4 For respondent No.3 For rcspondcnts 5-a & 5-b For respondent No.6 For respondent No.7 For respondeTits 8 to 12 AND Writ Petitlon No.1269 of 2001 PETITIONER: Dhanncndia Swaroop Jaia, S/o Shri G.L. Jaiu, Aged about 59 years, District & Sessions Judge, Raipur(C.G.) Versus RESPONDENTS: 1. Union of India, Throush: Secretanr, Ministry of Personnel, Public Grievances aad Pensioa, Deptt. of Personnel & Tramuig, Lok Nayak Bhavau, Khaa. Market, New DeUii. 2. State of Madhya Pradesh, Through: Secretaiy, Miuistrv of Law & Legal Affau-s, VaUabh Bhavan, Bhopal (M.P.) 3. State of Chhattisgarh, Through: Secretaiy, Ministry of Law & Legal AfFairs, D.K.S. Bhavan, Raipur, (C.G.) 4. Registrar General, High Court of Madhya Pradesh, Jabalpur (M.P.) 5. Registrar General, High Court of Chhattisgarh, Bflaspur(C.G.) 6. Shri B.K. Shrivastava, Distnct & Sessions Judge, C/o Registrar, High Court of Chliattisgarh, BUaspur (C.G.) 7. ShriV.K. Sbrivastava, District & Sessions Judge, Raipur (C.G.) Prcscnt; - Mr, H.N. Vyas, Advocate: Mr. V.V.S. Murthy, Addl. Central Govt. Staadixig Counsel; Mr. Prashaat Mishra, Advocate: Mr. Saajay K. Agrawal, Dy. A.G.: Mr. Manindra Shrivastava, Advocate: Mr. K.A. Ansari, Advocate: Mr. Malav Kumar Bhaduri, Advocate: For the petitioner For respondent No. 1 For respondent No.2 For the State/respondent No.3 For respondents 4 & 5 For respondent No.6 For resnondeat No.7 Before: Hoa'ble Shri L.C. Bhadoo, J. lc(tl^ Q^RDER (Passcd on fc-t^\" Dcccmbcr, 2003) The foUowine order of fhe Court was passed by Justice L.C. Bhadoo: - '. By this writ pctition (W.P.No.414 of 2002) under Arttdes 226 & 227 of the Constitution of India, petitioner Mr. Dilip Deshiaukh, District & Sessions Judge (Super Tune Pay Scale), Iias chaUenged ftie order dated 07.06.2001 passed by the Union of India ordering provisional atlocatiou of respondeut No.6 Mr. B.K. Shrivastava, Distri.et & Sessions Judge, Rewa (M.P.) retrospectively w.e.f. 01.11.2000 to the Ste.tc of Chliattisgarh under Section 68 (1) ofthe Madhya Pradesh Reoi^aaisation Act, 2000, and also the order dated 07.12.2001 passed by the Union of India by which under the Above Super Tune Scale categoiy, respondents 6 & 7 nainely, Mr. B.K. Shrivastava & Mr. V.K. Shrivastava, respectively, have been aUocated finally to ftie State ofChIiamsgarhw.e.f. 01.11.2000. 2. Similarty, by writ petition No, 1269 of 2001 under Articles 226 & 227 of fhe Constitution of Indla, petitioner Mr. Dhanaeudra Swaroop Jaui, District & Sessions Judge, Raipur, ttas chaUenged the provisional allocation of Mr. B.K, Shrivaslava, District & Sessions Judge, Rewa (M.P.), vide order dated 07.06.2001 passed by the Union of India under Section 68 (1) offhe M.P. Reorgaiusatiou Act, 2000 aud iilsu tkc fiual atlocatiou ofabovc Iwo OIIicci-s i.c. Mr. B.K. Shrivaslava aad Mr. V.K. Shrivastava. -u. Siacc, in bofh thcsc writ pctitions, samc qucstion of law is involvcd aad also same aUocation orders are chaUenged, they are beiag disposed of by this conuaon order. 4. At fhe tune of fhe provisional aUocation botfa thc petitioncrs wcre worfcmg iu the cadre of District & Sessions Judge in Super Time Scale, whereas, bofh the respondents (respondents 6 & 7) werc working in fhe cadre of District & Sessions Judge in. Above Super Time Pay Scale, Facts leading to filuig of these writ petitions are that fhe Goverument of India decided to bifurcate the State of Madhya Pradesh into two States i.e. Madhya Pradesh and Chliatdsgarh, accordiagly a BUl was laid before fhe Parliament^ T3/ uiider the enabUag power of Articles 2, 3 &4 of the Constitution of India. Rclcvant parts of Articlcs 2, 3 & 4of thc Constitution of India, which are relevaut in these cases are reproduced below: - 2. Adaaissloa or establislunent of aew States..— Parltament may by law adinit iuto the Union, or estabUsh, new States on such tenns aad conditions as it tfaiiiks fit. 3. Formation of new States and alteration of areas, boundaries or nanies of ejristtatg 8tates..—Parliataeiit inay by law— (a) form a ncw Stetc by separation oftcmtory fmm any State or by uniting two or ruore States or parts of States or by unitmg any territoiy to a part of any State; (b) iacrease the area ofany State; [E.xpluriutiunI.—Iii this arUclc, iu clauscs (a) lu (c), \"Stalc iacludes a Urdon temtoiy, but in the proviso, \"State\" does not iuclude a Union temtoiy. Explanation ff—The power conferred on Parliainent by clause (a) includes fhe power to form a new State or Union territoiy by unituig a part of auy State or Union temtoiy to auy other State or Union territoiy.j 4. Laws made uader Articles 2 and 3 to provlde for the ainendment of the Rrst and the Fourth Schedales aad supplemeatal, lacldental and coasequeatial mattea's.— (1) Any law referrcd to in Ardcle 2 or Article 3 shatt contam such provisions for the amendment of the First Schedule and the Fourth Schedule as may be necessaiy to give eflFect to the provisions of the law and may also contam such supplemental, uicideutal and consequential provisions (uicludiug provisions as to representation ia Parliament aud in the Legislature or Legislatures of the State or States affected by such law) as ParUament inay deem. necessaiy. (2) No sucli ]aw as atbresaid shall be deenied to be aa amendment of ttus Coastitution for the purposes of Article 368. 5. The ParUament resolved to bifurcate fhe State of Madhya Pradesh as mentkined above and in pursuance of fhat, Act No.28 of 2000 i.e. fhe Madhya Pradesh Reoi^anisation Act, 2000, was enacted by fhe ParUament for providmg the territories of fhe two States and to inake fhe necessary suppleiaental, incidental aad consequential provisions relatmg to representation in Parliainent aud iu fhe State Asseiublies, distribution of revenues, apportionment of assets and -- 6 liabitities, niatiageineu.t and developiaent of water resources and othcr mattcrs. la Part-LV of fhis Act (No.28 of 2000) a provision was inade regardnig H^h Court and ia F^rt-VIII Provisions as to services were niade. Relevaat Sections 68, 69, 71 and 72 read as under: - 68. Pro^sions relating to servlces in Madhya n-adesh aad ChhattisgEU'h.—(l)Eveiy person who iminediately before fhe appoiuted day is semng in connection with the affairs of fhe existing State of Madhya Pradesh shaU, on and finni that day provisionalty contfaiue to serve in connection wittt the afitairs ot' the State of Madhva Pradesh ualess he is required, by general or special order of the Central Govenuneut to serve provisionaUy ia coiuiection with fhe affau-s of the State of Cfaliattisgarh: Provided that no direction shaU be issued under this section after the expuy of a period of one year fiom. the appointed day. (2) As soon as may be after the appoiated day, the C^ntral Goverum.eut shatl, by general or special onder, detei'iniae the successor State to which eveiy person referred to in sub-section (1) sbatl be finalty allotted for service and fhe date wifh effect from which such aUotment shall take cffcct or bc dccincd to havc takcn cffcct. (3) Every person who is finaUy aflotted under fhe provisions of sub-section (2) to a successor State shaU, if he is not already serviag fherein be niade available for . serviag in fhe successor State frovi such date as m.ay be agreed upon between fhe Goveruments concemed or in default of such ^reeinent, as inay be detemuned by fhe Ccntral Govenunent. 69. Provlsions relating to other servlces.— (1) Nothing in ttus sectiou or section 68 shaU be deemed to affect on or after fhe appoiated day fhe operation of fhe provisions of Chapter I of Part XIV of the Constitution in relation to determiaation of the conditions of service of persons scrving in coitacction with thc affairs of fhc Union or any State: Provided fhat the conditions of service appUcable inunediately before the appointed day iu fhe case of auy person deemed to have been attocated to the State of Madhya Pradesh or to fhe State of Chliattisgarh under section 68 shaU not be varied to his disadvantege except with fhe previous approval ofthe Central Govenunent. (2) AU services prior to the appoiuted day rendered by a persou - (a) if hc is deeiucd to tiave becn aUocated to any State uader section 68, shaU be deemed to have been }y^ rendered iii coniiection with fhe affaiis of that State; (b) if he is deeined to have been allocated to the Union in coimection with fhe administration of thc ClLhallisgai-h shaU bc dccuicd tu havc bccu reTidcred in connection wit.h thc affairs of tTie Union; for the purposes of the rules regulating his conditions of service. (3) The provisions of section 68, shall not appty ia relation to nienibers of any AU India Service. 71. Advisory coinmittses.— The Central Govenunent may, by order estabUsh one or niore Advisoiy Coimnittees for tiie purpose of assisting it ia regard to - (a) the dischai^e of any of its functions uiider this Pai't; aiid (b) the eusuring of fair and equitablc treatment to aU persons affected by the provisions of fhis Part aad fhe proper consideration of any representations made by such persons. 72. Power of Ceatral Government to give directions.— The Central Ctoveminent inay, give such directions to fhe State Goverrmient of Madhya Pradesh and the State Govenuuent of Chhattisgarh as may appear to it to be necessaiy for fhe purpose of giviag efiFect to fhe foregoiag provisions of tfais Part and the State Goverainents shall coinpfy wifh. such directions. 6. Iu oitlcr lo caiiy oul tbc piuvisiuus uf abovc Scctious, Uic Ccultal Govenunent issued guideluies for provisional allocation uuder Section 72 ofAct No.28 of 2000 ou 13ih September, 2000, regardmg tbe prixiciples govemiug fhe provisional aUocation of personnel belonging to fhe semces ofher ibsai the ;'yi ludia Semces to the new Sta.lcs iTi accoiilaucc with tlic piuvisious of thc Rcoi^auisatiou Acts, 2000 and thereafter, for final aUocation guideliues were ^ain issued by the Goverrtment of India vide order dated 21st/22nd Deceiaber, 2000. A provision of Advisoiy Conunittees was provided for under Section 71 ofthe Act aad State Advisory Committee was constituted vidc oixlcr datcd 01.01.2001, as pcr Uic pruvisiuus of Scctiou 71 of the Reoi^anisation Act; meeting of that Committee was held on 23Td & 24th February, 2001, under ttie Chau-maaship ofMr. N.V. Lohaai. In fhe meeting of fhat Cominittee certam. modalities for aUocation of ^ T^ ftie persoimel to the successor States were laid down aad lainutes offhc incctiag wcrc also prcparcd. As pcr clausc 3.3 offhc ininutes, it was decided that as thc aUocation of the einployees of State Assembly and Judiciaiy also conies luider the purview of the Reorgaaisation Act, fherefore, looking to fhe speGialties of these services, fhe allocation ofemployees ofthese troo institutions shouM bc madc in. consultation wifh fhc Hon'blc Spcakcrs of fhc both thc Asseiablics aad the Hon'ble Chief Justiccs of both fhe H^h Courts. Again as per clause 3.6 the pnnciples goveming the distnbution of posts were laid down and it was decided to atlocate 26.23% posts to ftie newly created State of Chliatdsgarh aad ia fhe last Unes of Chaptor-V rcgardiag fhc distribution of thc scrviccs of thc einployees of the State Judiciary and the State Asseinbly, it was nientioned that steps should be taken tbr their allocation accordiag to the advice of HoTlTlle. the Speakers of the Statc AsscTnblies and Hon'ble the Chief Justices of both fhe High Courts. Further, in ordcr to cany out fhc purposc of thc Act, guidcUncs dated 22nd March, 2001 (Annexurc P-10) were also issued by the Keorganisation Cell uader the sigiiature of Mr. Kaghuvendra Singh SiroTii, PriTicipal Secrctary, Govemment of Madliya Pradesh, for allocation of the einployees. 7. In order to appreciate ftie arguments advaaced by the leamed coiuisel for the parties, it is necessaiy to inention here the relevaat service particulars ofconcerued Officers: - ^, Mr. A.K. Tiwari; He was ia fhe Above Super Tixne Pay Scate since 1999. He retired on 31rt October, 2001. InitiaUy he opted for the State of Chhattisgarh. Accordingfy, he was provisionally allocated to Uic Siatc uf Clilialtisgarh w.c.f. 01.11.2000. Howcvcr, ou 07.09.2001, oue day before the ineetuig of Hon'ble the Chief Justices of fhe two High Courts, he gave in writing fhat he waat to chauge his option and waated to be aUocated to the State of Madhya Pradesh. Accordingly, fhe two Hon'ble Chief Justices advised fhat hc shoulil bc aUocalcd lo tlic Statc of Madhya Pi-adcsh. Bul aflcr fhat ineetmg iu the inonth of October, he agaiu wiftidrew his request for chaage of option for allocation. As his earUer request was atoeady acceded and recomniendations were already sent to the )T Central Govenrment, he was fiiiaUy allocated to the State of Madhya Pradcsh. Mr, D.S. Jaui; On 01.11.2000, he was m the Siiper Time Pay Scale. He retired on 31.07.2002. His name was approved for graat of Above Super Time Scale on 08.07.2000 by the High Court of Madhya Pradesh. As there was no vacancy ia this scale tiU 01.11.2000, therelbre, he was not given. fhis scale tiU fhe provisional aUocation to the State of Chliattisgarh, Howcver, he was granted Above Super Time Scale w.e.f. 10.08.2001 by the High Court of Chliattisgarh. Mr. B.K. Stuiyastava: He was ia fhe Above Super Time Pay Scale siace 1999, before the bifurcation 6f the State of Madhya Pradesh. Hls honie district was Varanasi He was atlowed by the High Court of Madhya Pradesh to chauge his home district froia Varauasi to BUaspur vide order dated 04.09.2000, whereas, as per the guidelines issued by the Central Goverainent, for the purpose of aUocatioa, the hoine district was to be considered as on 1st of April, 2000 aad It was decided not to aUow the change of houie district, fhereafter. InitiaUy he opted for fhe State of Madhya Pradesh, but later on, vide letter dated 11,01.2001 (Annexure R-2/1), he requested the Registrar General, Madhya Piadesh High Court, to chaage his option aad the sanie was sent to fhe Registrar General of Chlialtisgaih High Coiu'l ou thc saiuc day. Vidc lcUcr dalcd 30.01.2001 (Aimexure R-2/2) Mr. T.K. Jha, the then Registrar Geaeral of Chhattisgarh High Court conveyed to the High Court of Madhya Pradesh that the High. Court of Chliatdsgarh gives consent and expresses no objection if Mr. B. K. Shrivastava is aUocated to tlie Stalc of Chliatlisgai-h aud thcicaftcr, vidc uiucr uatcd 07.06.2001, Mr. B.K. Shrivastava was provisiouaUy aUocated to the State of Chliatdsgarh. Mr. V.K. Shrivastava: He was ah-eady drawing the Above Super tiinc Fay Scale siace 1999, before formation of the new Htate of Chhattisgarli i.e. in fhe iindividRd crstwlnlc State of Madhya Pradesh. He had not given his option for atlocation to either of the States. IIowever, ia final allocatkin he was aBocated to fhe State of > l/)^ 10 ClLhattisgarh, as his hoine District Jagdalpur is part of the State of Chliatdsgarh. 8. The HonTile Chief Jiistices of the two High Coiuts met on 08.09.2001 at Jabalpur for advisiag final atlocation of Judicial Officers to ftie successor States and ia that ineeting the Hou'ble CtdefJustices had decided to advice to fixialty allocate, among offaer Judicial Oi5cers of' other pay scales, Mr. B.K. Shrivastava & Mr. V.K. Shrivastava of the Above Super Time Pay Scale to the State of Chliattisgarb aad Mr. A.K. Tiwari ofAbove Super Time Pay Scale to the or^mal State ofMadhya Pradesti w.e.f. 01.11.2000. 9. We have heard the leamed counsel for the parties at lengtti. 10. lt is made ciear liere that in these writ petitions the only challenge is to the allocation of respondents 6 &, 7. I^camed coiinsd for fhe petitioners veiy fiaakly subnutted at the Bar that fhe petitioners are not chaBcnging thc final allocation of ofhcr Of&ccrs. As thc petitioners are affected and aggrieved by the aUocation of respondents 6 & 7, therefore, both the writ petitions sliould be considerKd to that extBnt only. TherRforE;, we an\" rcqiiirRd to deridc fhe questiou up to fhat extent only and we are not entermg iuto fhe dctails ofaUocation ofaU thc of&ccrs ofothcr pay scalcs. NATURE OF GUIDBLINES ll.Mr. Saajay K. Agrawal, the leanied Deputy Advocate General ,»,appeariag on behalf of the State of Chhattisgarh argued that the ^uideliaes issued by the Ccntral Goverruuent, the Advisoiy Conunittee and fhe State Reoi^aaisation CeU are not biadiag in ua.luj-c as Uic samc ait; uot staluloiy iu ualuit;. Thcicfoic, tlicy aic not enforceable at law. But, we do uot find any force ia fhis ai^ument of the learued Deputy Advocate General for fhe reason that as extracted above, Section 72 ofthe Reorganisation ActNo.28 of 2000 envisages that \"the Central Govenuaent may, give such diit;cdous lo thc Sftiic Cfovci-uiucut of Madhya Piadcsh aud Ihc State Govemmeiit of Chliattisgarh as may appear to it to be necessaiy for the purpose of giving effect to fhe foregoing provisions of fhis Part and the State Govenunents stiaU comply wifh such -7?7i 11 directions\". Therefore, the above guideluies issued by fhe Central Govcnuncnt and thc Advisoiy Committcc constituted uiidcr Scctioa 71 of the Reorgamsation Act, 2000, and the guidelines issued by the Reorganisation CeU ia our cousidered opinion arc issued under the above Section. Therefore, fhese are statutoiy guideliiies aad fhey have statutoi;r force aad any action taken ia accordance wifh these guidcliacs caiuiot bc assailcd on fhc groiind that thcsc guidclincs are not enforceable. For fhis view, we are fortified by the judgment of the Apex Court in the case of The State of Maharashtra and another vs. Chaadrakaat Anaat Kulkarni aad others reported ia AIR 1981 Supreme Court 1990 (Pam 9 & 10). ARTICLB Z35 OF THE CONSTUTITON OF IBDIA 12. Learncd couuscl for fhe petitioners argued fhat it is aa adniitted fact that before issuaace of final aUocatioii order the two High Courts were not consulted. Only HonTile the ChiefJustices considered aad prepared fhe Ust and gave their advice to fhe Ccntral Goverrunent. As per Article 235 of the Constitution of India, powers of control over district courts aud courts subordinate fhereto includiug fhe posting and proinotions are vested in the High Court. Therefore, before sendiag fhe list for final aUocation to fhe Centa-al Govermnent, the Ust ou^ht to have been approved by FuU Court of two H^h Courts aad ia absence fhereof, the final aUocation is not ia coulbiiuily wilh Articlc 235 of (lic Coustilutiou of ludia. Thcicfoi'c, fhe aUocation suflFeis from Ulegalily beiag contraiy to Ardcle 235 of fhe Constitution of India. 13.The leamed couiiscl for fhc petitioncr placcd rcliancc on thc foltowing judgments: - a. Madan Mohan Choudhary vs. State of Bihar and others reported in (1999) 3 SCC 396. b. Gauhati High Court and another vs. Kuldhar PIiukan reported m AIR 2002 SC 1589. c, Brtjmolian Lal vs. Unlon of India reported m 2002 (S) SCC 1. d. Tejpal vs. State of U.P. and another reported ia AIR 1986 SC 1814. ./•• L-- 12 14.0n fhe other haad, learaed counsel for the Union of India; leamed counsel tbr the Higli Coiuts; leamed counsel tbr respondents 6 & 7; and also leamed coiuisel for the State Govenunents submitted that looking to the special aad peculiar circumstaiices and being aa extra-ordinaiy event by virtue of Ardcle 4 of fhe Constitution, action was required to be taken uiider fhe special provisions ofAct No.28 of 2000 (M.P. Reorgarusation Act, 2000) and under this Act, the C^ntral Goverruaent was the only conipetent authorily who was entitied to take fiTi.il decision. Therefore, ia fhis case, Article 235 of the Constitution of India is not appUcable, as this Act has been enacted under Articles 2, 3 & 4of the Constitution of India. In order to canyout and give eflect to fhe provisions of ttie Reoi^anisation Act, suppleBiental aud incidental provisions of law as enacted by fhe ParUament under Ardcles 3 aud 4 of ffae Constitution of India have been niade. In this l^ht siiiular question came up for consideration before fhe Himachal Pradesh Higli Court m the matter of Slui H.D. Kainthala, Chief Judiclal Maglstrate vs. The Uaion of India and others reported in 1974 (1) S.L.R. 8, iu which fhe H^h Court of Hitaachal Pradesh while interpretiiig Section 82 ofthe Punjab Reorganisation Act, 1966, held that, the fuiiction of accom.plishing fhe division and uitegranon of the services, which includes the equation of posts and the fixation of seniorily, is a fiuiction entirely entrusted to the Cential GovemmLent by Section 82 of the Ptmjab Reoi^aaisation Act and that it is not open to fhis Court to sit la judguient on fhe luerils of a decision of fhe Centa-al Govenunent ia exercise of that function. decision of fhe Central Goverrunent under Section 82 can be assaUed either on thc ground that it is iu cxccss of fhc powcrs conlerred by fhe statue or is vitiated by rnala fides aad pronipted by extauueous considerations\". It was furfher held that, whefher \"Reorganisation of States—Cential Goverruiient coiapetent to fix seniorily of Judicial OfBcers as this fiuiction is cntrusted to High Court undcr Articlcs 233 to 235—Held, Articles 233 to 235 are not appUcable.' In that judgment it was further held that, \"fhe Centoral Govenuneut has been entrusted with the power to determiae fhe equation of posts and fix the seniority of aU the Judicial Officers, be they atlotted fmm. /' /' 13 Punjab already serviag ni Himachal Pradesh. The Puujab Re-oi^aaisatiou Act can be traced to the provisions of Arti.de 3 aud Article 4 of fh.e Constitution. Article 3 (a) einpowers ParliaDient to enact a law formiug a new State by separation of territoiy fioin any State. Uudcr Atticlc 3 (b) tlic law cau piuvidc fur iuci'casiug thc area of any State. The Rxplanation to Article 3 riefines the expresslou 'State' used iu clauses (a) and (b) ofArticle 3 as iucludiag a Union Territory. Ardcle 4 provides that a law referred to in Ardcle 3 shaU contam such provisions for the amendment of the Pirst Schedule and fhe Fourth Schedule as inay be necessaiy to give effect to the provisions of fhe law aud inav also contaia such supplementaiy, uicidental aad consequential provisions as Parliament may deem. necessary. The Punjab Re- oi^anisati.on Act is aa example of such legislation. Section 95 of the Act declares that the provisions of that Act shatl have effect notwifhstaading auyfhiag inconsistent therewifh contaiaed in aay other law. There can be no dispute fhen that tf there is aay clash between Uic Puujab Re-oi^aiusialiou Acl aud tlic Huuachal Pradesh (C^iurts) Order, 1948, the latter niust yield to the formes\". Thcrcforc, it was hcld fhat Articlcs 233 to 235 of fh.c Constitution caiuiot be appUcd in ftie present casc. 15,Agam, in fhe matter of Bhiinaji Anna Sao Patil and another vs. The Re^strar, H4?i Court of Mysore, Baagalore aad another reported in AIR 1966 Mysore 81, it was held by a Division Bench of tt»atCourt that, \"Serva&ts of High Court of existing State aUotted to service of High Court of new State — Power to integrate them. uito semce of new H^h Coiirt iucluding the power to equate fhe posts for fhe purpose Uelongs exclusively to Central Govenunent — Orders passed by Chief Justice in fhat regard are merely of piovteional character — Hence Registrar of thc High Court is bound to submit all papcrs aad' representations by the aBected persons to Ceiitral Govermaent for decision — Power given to Ceutral govemmeut under Sectiou 115, States Reorganisation Act is a special power which ovemdes tlie power given to Chief Justice under Article 229 of fhe Coustitution oflndia'. 16.In the case ofV.B. Raju vs. State of Gujarat aad another reported in AJR 1980 Supa-eme Court 2075, the provisions of Reorgaaisation Act aad fhe affect of law made uader Ardcles 3 & 4 of the Constitution of India vis-a-vis Article 222 (1) of the Constitution of India were considered by the Hon'ble Apex Court. In v^~ 14 . fhis niatter, fhe question arose befoi-e the Apex Court that if aiiy High Court Judge is aUotted to a newly created High Court under the provisions of Boinbay Reorganisation Act, whether fhe Judge who was aUocated froin Boiabay High Court to nevvly created Gujarat High Court was entitled for conipensatoiy allowaiice iti -.terms of Article 222 (1) of the Constitution of India. The Hon'ble Apex Court beld that, \"Articles 3 aad 4 of fhe Constitution deal with a special situation and so long as a provision of law proniulgated by Parliamciit can be considcrcd as suppleincntal, tncidental or consequential to tlie formation of a new Statc it would bc enforceable even fhough it uiight amouiit to an ainendment of certain provisions of the Constitution. The provision contaiaed ia Section 29 of the Act is clearly consequential to the formation of fhe State of Gujarat aad the establishiueiit of a High Coiut for it. It was for the purpose of settiag up that High Coiut that Judges then serving in the Boinbay High Court were, so to say, \"aUotted\" to fhe High Court of Gujarat; and although fheir appoiatm.ent to the Gujarat High Court may partake of some of the characteristics of a traasfer, we do not fbitLk fh.at fhey can be said to have been traiisferred froin the Boinbav High Court to the Gujarat High Court wifhin. the ineaoiag ofArticte 222 (1) of fhc Constitution. Thc cntitleincnt to coitipcnsatory' allowance under Ardcle 222 (2) is conditional upon fhe Judgc beuig \"so traasferred\", that is, traasferred; as envisaged by Article 222 (1). Smce the appeUaiit was '\"atlotted\" to the Gujarat High Court on the aetting up of that Court, he will uot be entiUed to claim the coinpensatoiy allowaiice, .Therefore, ia view ofthe above decisions and ui view of Section 85 of the M.P. Reoi^aaisation Act, 2000 (Act No.28 of 2000), that tlie provisions of fhis Act shall have effect notwitfastan.ding an^'thing uiconsistent ffaerewifh contained in any ofher law, lookiug to fhe provisions ofPart-ViII oftiie Reorgaaisation Act (Act No.28 of 2000) aad provisions ofSection. 68 offhis Act, fhe provisions ofPart-VIII of the Act and guidelincs issued undcr Section 72 of the Act are uicidental aad supplemental to the scheme of the Reorgaiusatiou of States. The same are enacted for fhe purpose of giviag effect to tlie reorgaaisation scheine aad to protect the interest of fhose public servaats who are affected by the reorgaiiisation. In ordcr to render justicc to tlie senricc personnel atlotted to thc new State and to avoid aa.y possibiUty of their betn^ discriminated agamst, it was thought necessary to entrust ftie, v r^) 15 .^' poroers nientioned ia Section 68 oftbeM.P. Reorgatusation Act, 2000, to the Ceatral Govenunent. The power conferred upon fhe Central Govemincnt was a special power as the entire affairs of reorgaaisation of the State was an extra-ordinan.- event bv virtue of ArUcle 4 of fhe Constitution of India. It was designed to meet special need in the special circi-umstaaces. Therefore, luatters falluij within the scope of Section 68, fhe power given to tlie Central Goyertuncnt is exclusivc aad has ovemding efFect on Article 162 of fhe Constitution of India and ftiat given to flie Govemor under Afti.de 309 of the Constitution or that given to the High Court uader Article 235 offhe Coustitution. IS.Moreover, the validity of Sectioas 68 & 85 has aot t»een chaUenged in these petitions. Therefore, the petitioners caauot challenge the powers of Ceatral Governaaeat for aUocating the Judicial Ofiicers witliout chaUenging the visu.s of Sectlons 68 & 85 ofthe M.P. Reorganlsation Act, 2000 (No.28 of 19.In vicw of thc cxtra ordinaiy cvcnt by virtuc of .Articlc 4 of thc Constitution of India, aad tn view of the scheme under Section 68 of fhe M.P. Reorganisation Act, 2000, and also inview ofSection 85 of the M.P. Reorganisation Act, 2000, fhe judgiaents cited by the leamed counsel for fhe petitioner are not applicable in the present case, because ia aU fhcsc cases Article 235 of the Constitution of India was mterpreted in the ordiaaiy course and none ofthese cases deals with the \"situation arisirig out of the extra-ordinaiy event under fhe State Reorgaaisation, as has been niennoned earUer tliat in view of Section 85 of £he M.P. Reorganisation Act, 2000, the provisions of this Act shall have efFcct aotwifh.standmg aaythia^ mconsisteat therewith contained ia any ofher law. SCOPE, MODE AND MANNER OF ALLOCATION UNDER SECTION 68 OP THB M.P. REORGANISATION ACT, 2000 20.Leamed counsel for the petitioner argued fliat as per the scbeme of Section 68 of tlie M.P. Reorgaaisation Act, 2000, (No.28 of 2000) provisional aUocation was to be laade only once and once fhe 7^^) 16 ^' provisional aUocation was uiade, fhereafter, the Ceattal Govenunent was not coinpctent to inakc furfhcr provisional allocation as pcr thc provisions of Section 68. He furfher subinitted that proviso to sub- sectiou (1) of Section 68 is ia fact proviso to the whole Section, it goveras the whole Section and it cannot be interpreted fhat this proviso is to sub-section (1) ofSection 68 as this pro dso speaks that no dircction shall bc issucd undcr fhis Scctioa aftcr thc cxpiry of a period of one year from the appointed day. The word 'this Section' has been used iu this proviso aad the word 'sub-section' has not been used. Moreover, sub-section (2) further ruakes it clear which starts wifh the words 'as soon as may be after fhe appoiated day, fhc Ccntral Govcrruncnt shall, by gcncral ordcr or spccial ordcr, determine the successor State to which eveiy person referred to in sub-section (1) shall be finally allotted for service'. 'l'hereforc, the words as SOOTI as of siih-sectioTi (2) makes it. clear tTiat once the provisional list was issued, the Central Govenunent was required to issuc thc final allocation list fhat is why a ridcr of onc ycar was put on this Section. To support his ai^uinent, fhe learued counsel for the petitioner further subuutted that the tiine schedule fixed under Part-VIII of thc final giiidelines issiied by fhe Central Govemincnt on 21st/22nd December, 2000, clearty shows fliat after the constitution of fhc State Advisoiy Com-Diittcc, thc Committec was •-required to distribute ffae posts for the successor States within. one inonth froin the date of its constitution aud thereafter, withia Diae inoTiths, the Ccntral Govemnient was rEiqiiircd to notity the final list for infonnation of all concemed after foUowing fhe process as given in. thc tiTnc schcdulc. 21.In support of his ai^uments, tearued counsel for the petitioner relied upon fhe foUowing cases ofthe Hon'ble Apex Courfc - b. HarbhajaB Sin^i vs. Press council of Ittdia aad others reported iu (2002) 3 Supreme Court Cases 722. c. J.K. Industries Ltd. and others vs. Chief Inspectoi of Factorles fi» BoUers and others reported in. (1996} 6 Supreine Court Cases 665. d. Coinmissioaa- of Income-tas;, U.P. vs. Jaganaatli Mahadeo Prasad reported in AIR 1969 Supreme Court 209. 7C<3' 17 e. Mallawwa (Smt.) and others vs. Oriental Insurance Co. Ltd. aad othCTS rcported m (1999) 1 Supreme Court Cases 403. 22. On fhe ofher hand, leacned counsel appearing on behalf of all the respondents subinitted fhat readiug of Section 68 of fhe M.P, Reorganisatiou Act, as awhole, clearly shows fhat tiU one year fi-oia the appointed day, the Central Goverrunent was witbiu its right, accordiag to the provisions of sub-section (1) read with proviso to that sub-section, to issue as many as provisional lists by generial or special order for aUocating the pcrsons to seive provisionaUy iu coimection with the affairs offhe State of CtLhatdsgarh. As far as the question of final aUocation was concemed, no liiaitation was prescribed. The words 'as soon as' used in sub-section (2) cannot be interpreted that in all probabilily the final Ust was to be issued before one year aad final Ust issued after one year was without authority and fherefore, itcaauot be giveu effect to. 23.In the case ofHarbhajan Singh (suprc^, white mterpretmgSection 6 (7) offhe Press Couucil Act, 1978, tbe Hon'ble Apcx Coui-t hcld that, 'Literal mfaning — Graminatical aad plam ineaning should be preferred -tmless fhat leads to absurdily or anoiaaly or ualess material avaUable justifies a diEFerent meatiing — In absence of aay material, a v^ different meaning caunot be ascribed by traciag histoiy of the legislation and attributing object and legislative intendincnt which suits court's own view. Where right to be appoiated is conferred by the statue, aay uiel%ibili1y cntailing a bar OQ bein^ appoiuted should be clearty provided ia absence of which such bar cannot be read iato the provision on the basis of assiuned iatention.\" 24.1n other decision in the case of J.K. Industries Ltd. and others (sufM'c^, the Hon'ble Apex court while interpreting proviso (u) to Section 2 (n) ofthe Factories Act, 1948, obseryed that, \"A proviso to a provision m a statue has several functions aad wlule uiterpretmg a provision of ttie statuc, thc Court is rcquircd to carcfuUy scrutioizc aad find out ttie real object offhe proviso appeuded to thatprovision. It is aot a proper rule of interpretation of a proviso that the enacting part or the main part of the section be construed fiist wifhout reference to the proviso and if the saine is found to be ambiguous only fhen rccourse niay be had to examiae fhe proviso. On 18 - ?- the other haad au accepted rule of interpretation is that a section and the proviso thereto must be construed as a whole, each pordon fhrowing light, if need be, on fhe rest. A proviso is normaUy used to reinove special cases flroin the general euactiaent and piuviuc fur tliciu spcciaUy. A piuviso qualifics thc gcneralily of the maiTi enactment liy pmviding an exception aad taking out fi'om. the uaain provislon, a pordon, wtuch, but for fhe proviso would be a part of the main provision. A proviso laust, therefore, be consideicd in relation to fhe principal matter to which it staads as a proviso. A proviso should not be read as it' providiag soniething by way of addttion to the maia provision which is foreign to fhe niaia provision itself. In soine cases, a proviso laay be aa exception to the maia provision though it caanot be inconsistent with what is expressed ia the main provision and if it is so it would be ultra vires of the inain provision aad struck down.\" 25. In the case of Commlssioaer of Income-tax (supvw), fhe Hon'ble Apex Court while interpretmg the proviso to Section 24 (1) of the Incoine-tax Act, 1922, observed that, \"Where fhe language is quite clear and no ofher view is possible it is futile to go iato the quesnon whefher the proviso to Section 24 (1) operates as a substaative piuvisiou or ouly by way ofau excepliou tu Sec'iiou 24 26. Iu the case of Mallawwa (Smt.) aad others (supraj, the Hon'ble Apex Court held fhat, \"Proviso tbough appcariag aftcr sub-scction (l) (b) (ii) of Section 95 of ttie Motor Vehicles Act, 1939, is a proviso to sub-sectioa (1) (b) 0 after araendnient\" 27. In ffae ligbt of fhe above principles laid down by fhe Hon'ble Apex Court, in thc first instaacc, plain m.caning should bc prcfcrrcd, uiiless that leads to absurdity or axiomaly or unless inateriai availabie justifies a different meaning, the Court has to carefully SRn]tini7£ in order to find tTic object. of the proviso appcnded tn t1ic provision, ifwe look into fhe provisions ofSection 68, as extracted in previous part oftbis order, shows that as per sub-section (1), the Centa-al Goveirunent was required to issue immedjately before thc appointed day, provlsional list of the persous to serve in connection with the affairs ofthc Statf of ChTiattisgarh and iinlcss a person hy a general or special order of the Central Govertunent was allotted to the State of Chhattisgarh was required to provisionally contmue to ^ ^- ^ 19 •y serve in connection with fhe affairs of fhe State of Madhya Pradesh. As pcr thc proviso for issuancc of thc gcncral or spccial ordcr, fhc outer luuit was fixed up to one year i.e. up to one year froia. the appoiuted day fhe Central Govenunent was withia its right to issue provisional Ust aud thereafijer, as per sub-section (2) of Section 68, ~ fhe Central Govenmient was required to determine by general or spccial ordcr fhc succcssor Statcs to which cvciy pcrson rcfcrrcd to in sub-section (1) shall be finaUy aUotted for service aad the date with eflFect from which sucli allocation shall take efFect or deemed to have taken effect. Sub-section (3) of Section 68 lays down that evei^1' person who is finaUy atlotted under fhe provisions of sub- scction (2) to a succcssor State shaU, if hc is not alrcady scrving fh.ereui be made avaiiable for serviug iu fhe successor State fixiin such date as inay be agreed upon between the Oovenunents concemcd or in defaiilt ofsiich agnieinent, as niay he determined hy the Central Govenunent. 28.As per sub-sections (1) & (2) of Section 68 of the M.P. Reoi^aaisation Act, 2000, fhe C-en.tral Govenunent was enipowered to issue as iiiany as orders, by way of general or special order, of allocation of persons to successor States at the provisional stage and at fisal stage looking to ground icaUties and requireinents of persons bv ttie successorStates in order to ineet fhe adininistrati.ve exigencies aud also to ensiire that aU the working persons are allocated to the either of fhe successor States. 29.Therefore, conibined readiag of these three sub-sections inakes it clear fhat initinlly the Ccntral Goveram.ent was required to issue a provisional Ust or Usts of persons aad such provMional lists by gcuci-al or spccial uixlci-s wcit; lo bc issucd wilhiu ouc ycai' fium. the appointed day. The word 'as soon as' denotes that eveu fhe final Ust afiter coiiipleting fhe whole exercise could have beeu issued wifhiu one year, but it was not niandatoiy that it shouM have been issued in aU probabilily within one year after foUowing the prescnbed piucedurt;. Evcu if il was uul issucd withiu ouc ycai\", thc Ccutfsil Govenunent was not prohibited to issue the same after expuy ofone vear as no outer lunit was fixed for issuauce of Ust of final aUocation. \"7^ 20 30.In Bih.ar Reorganisatiou Act, 2000, similar proviso was added to sub-section (1) ot' Section' 72, wliich deals with provisional atlocation. A smular proviso was also appended to Section 73 (1) of fhe Uttar Pradesh Reorganisation Act, 2000, ia wtuch provisions relating to other services was provided in Section 73 of the Act aad after sub-section (1), a proviso that eveiy drrection uuder this sub- sectiou issued after the expiry of a period of one year fi-om fhe appouited day shaU be issued with consultation of the Govemors of successor States, So, in all fhe fhree Acts, at ftie same time, a sitmlar proviso was appended to sub-section which deals wifh provisional atlocation. The intention behind this proviso was that issuaace of the provisioDfll allocation Ust of the euiployees shoiild be restricted up to one year only aad no siich list is atlowed to be issued beyond one year. The provisional aUocation is always inade in order to nieet the urgent adnunistrative exigencies and in order to ensure smooth fiinctioning of administranon ia the newly created State. By any stretch of iiaagiaation, it canaot be interpreted fhat the iutention of the ParUainent behiud adding ttus proviso was to add fhis proviso to whole section aad to ensure that final attocation should be made withia one year. Therefore, fhe arguments of the tearued Senior Couasel appeariug on behalf of the petitioner fhat -Khe proviso in tact is a proviso to the whole section and is not to sub-section (1), is withoiit force, Sl.Even ofherwise, if we look iato the scheine under which fhe Advisoiy Coininittee was required to uitdei^o a process in order to fijnaUze ftie Ust, it was itself such a lengfhy procedure, which was not feasible for the Central Gtovenuuent to issue final Ust wifhia a ycai' fiuiu Uic appoiuiicd day. Evcu ifwc louk iuto the tiiuc schcdulc laid doivn by the Central Govenunent, clause (1) ofwhich says that the State Advisoiy Committee wiU. finalize tiie distribution of posts for fhe successor States wifhiu one inonth froin the date of the constitution of fhe Advisoiy CoTnmittee and tttereafler, further steps as suggcsted iu thc schciuc wcit; tu bc takeu fi;uiu 01.01.2001, fi-oui this date, it was not possible for fhe Central Govenunent to issue final aUocation before 01.11.2001. It is true that ia the proviso to sub-section (1) of Section 68 ofthe M.P. Reoi^anisation Act, 2000, 21 fhe word ''section\" has been used iastead ofthe word \"sub-section\". But in vicw of thc abovc discussion and looking to fhc schcinc of Section 68 of the Act and tfae tiine schedule prepared under the guidelm.es for preparation of fhe final list, only one interpretation caa be given to the word 'section\" that it has been used with refeicnce to sub-sectiou (1) of Section 68 of fhe Act, therefore, the word '\"scction\" has to bc uiterprcted as ''sub-scction.\". ALLOCATION OF MR. B.K. SHRIVASTAVA 8s MR. V.K. SHRIVASTAVA TO THE STATB OF CHHATTISGARH AKD MR. A.K. TIWAR! TO THE 'T STATB OF MADHYA PRADBSH 32.The leamed senior counsel for the petitfoner further aiyied that Mr. A.K. Tiwari was provisionatly atlocated to the State of Chliattisgarh w.e.f, let November, 2000, and only oue post of Above Super Tuue Scale was atlotted to ftie State of ClLhattisgarh, therefore, no other person canyuig Above Super Time Scale could have been aUocated to the State of Chhatdsgarh as there was only one post available in tbe State of Chliattisgarh which was surrendered io. favour of Chliattisgarh vide Anuexure P-4 and tUl the final aUocatiou dated 07.12.2001, no ofher post ia the Above Super Time Scale was created by the State of CtLhatdsgarh. He further submitted that Mr. D.S. Jain was also graiited Above Super Time Scale on 10.08.2001 aad at fhe time of final allocation he was also canyiag fhe Above Super Tiuic Scalc. Thciefoic, thc aUucatLou of icspoudculs 6 & 7 was not according to the guideUnes and posts aUocated to the State of Chhatdsgarh. f' 33.0n the othcr hand, leamcd couiisel for thc respondents subinitted that in the State of Madhya Hradesh as on 31.10.2000, eleven Officers werf: working in the Above Siiper Tinie Scale; six against sauctioned cadic posts ia fhe M.P. Higher Judicial Service aad fiye on dcputaUon basis on cx-cadrc posts tn fhc Abovc Supcr Timc Scale. Therefore, in all eleven Officcrs were workiag ia thc Above Super 'l'ims Scale. As per Sectiou 68 ofthe M.F. Keoigaaisation Act, 3000, all thc officcrs working in fhc Above SiipcrTime Scatewere to be atlotted to successor States. 22 34.As appears froia fhe additional reply filed on behalf of respondent No.5 i.c. Union of India at pagc 230 of thc papcr book whcn thc letter dated 11.09.2001 along wifh the Ust showiag the posts atlocated (Anuexure R-5/1) fix>m fhe Registrar General of M.P. High Court was examined, it was seen that as against total cadre •- strength of 988, there were 1051 Judicial Officers on roU for fiaal atloeatioa. Thcrcforc, a quciy was raiscd by fhc Ccntral Qovenuncnt to fhe High Court of M.P. seeking clarification as to wtiy there were excess number of Officers on roll compared to the sanctioned strengfh; Whefher fhe broad principle of aUocation decided by the H^h Court of M.P. & Chhattisgarh; and rcprcscntations fi'oin fhc Judicial Officcrs had bccn considcrcd, A reply was sent by the Registrar Ocneral, M.P. High Court that lai^e nuiaber of of&cers on roit arc worfcmg iu other Departments on depntation and hence, the variatioTi in the sanctioTied strength and fhe on-roll strengfh; aad the basis of aUocation has been fhe numbcr of Courts actuaUy functioniag ia scvcn Districts formiag fhc State of Chliattisgarh aiid on fhe basis of the needs of fhe newly constituted Chhattisgarh High Court. l<*urther, itwas iatunated that broadly spcaking, thc giiidelincs of the Ccntral GovRmincTit. as leceived fioin the State Gtovenunent have been foUowed namely, factors ]ikc witluigacss of thc Judicial Of&ccrs, fhcir honic district ...aid factuin of husband aad wife bciag ia Goverruncnt service werc taken iato consideration. The decisions for final allocation have IIRRTI takeTi only aftcr consideration of reprRsentations ftiom individual Officers. •r,\" 35.Therefore, leamed couiisel for the respondents submitted fhat even though uutiaBy at the tiine of provisional aUocAtion one post was aUotted to the State of Chliattisgarh takiag iato consideration six sauctioned su-engtti, but tfae actual working strengfh offhe OfSeers in the Above Super Time Scale was 11. Theicfore, at the time of nialdne final aUocation. it was decided to aflot two Ofi&cers to the State of Chliattisgarh, keepmg iu mind 26.23% ratio offhe Offieers to be allotted to fhe State of Chliattisgarh. 36.In the light of the above submissions made by the leamed counsel for fhe respondents, ifwe look iuto sub-section (3) ofSection 68 of [r) T^\" 23 tbe M.P. Reoiganisation Act, 2000, a plajn readiag ofit niaJies clear fhat if a pcrsou who was to bc fiiiaUy atlottcd undcr fhc provisions of sub-section (2) to a successor State, if he was not aiready sersrang fhereia was to be inade available for servuig in fhe successor State firom such date as iiiay be agreed upon between fhe Govemiuents concemed. Sub-section (3) en 7isages that even ifaccording to the provisioiial aUocation sonic Officcr was workiag ia onc State, hc could also be atlotted to ofher State iu final Ust and he was to be made available to the successor State as agreed upon betweeu by the two Goveminents. Therefore, it was not necessaiy for fhe Central Goverruaent to finally atlocate fh.e persons in fh.e satue State ia which thcy wcrc workhig accordiag to thc provisional allocatmn. In fixial allocation, the Central Govenuacnt was entttled to change the successor State of aay person fix>ra the State ia wtaich he was provisioTially allotted, of cmirse, hased on the giiidelines issiied by the Central Govermnent. Therefore, the atlocatfon ofMr. A.K. Tiwari back to thc State of Madhya Pradcsh .\"aTinnt bc said to bc in violation of sub-sections (2) or (3) of Section 68 of the M.P. Keoigaaisation Act, 2000. 37.1fwe look into sub-clause (5) ofpart IV ofguidelines dated 21rt/22nd December, 2000, it lays down fhat State service einployees retiriug withia two years from fhe appoiated day should not be covered Ibr final aUocation to a siiccessor State other thaa which they ha-ve been semng before fhe appoiated day. Mr. A.K. Tiwariwas working before fhe appointed day ia fhe State of M.P, i.e. before 18t - - Noveiaber, 2000 and he was to retire ou conipletion ofone year finm the appoiated day. Therefore, as per fhis clause, he could not have been aUotted to the siiccessor State of Chhattisgarh. Therefore, the Central Govenunent has not coiniaitted any illegalily ia atlocatinj Mr, A.K. Tiwari to fhe State of M.P. Even otheriffise, as mentioned ia previous part of this order, Mr. A.K. Tiwari him.self on 07.09.2001, gave application to the High Court ofM.P. chauging his option fix)in Chliattisgarh to M.P. aad thatwas acceded by bofh fhe HonTile Chief Justices aad his nanie was sent for final allocation. in the State of M.P. Tlierefore, white makuig fhe final allocation, fhe aUocation of Mr. A.K. Tiwari to the State of Chliattisgarh could not r~-<-. T^ 7 24 have been considered aad righUy that was not consideicd by the Ccntral Oovcnuncnt. 38.Now, commg to the question that only one post ofAbove SiiperTime Scale was allotted to the State of Chlia.ttisgarh, then how tn?o OfSccrs carrymg the Above Super Tim.c Scale could have been atlocated to the State of CIihatdsgarh, as mentioned above, one post was aUotted to ttie State of Chliattisgarli taking into consideration the fact of saactioned strength of six posts in the Above Siiper Time. Scale, whereas, eleven Of&cers were already workiag iu fhe State of M.P. ia fhe Above Super Time Scale. Sub-clause (2) of Part-III offhe guidelines dated 21Bt/22ud December, 2000 envisages that a tentative final aUocation list of aU ttie einployees was to be tiaalized for either of thje successor States. As per sub-claiise (1) of Part-IV of the above guidelines, final aUocation of eiaployees was to be based on distribution of posts to be finalized by the State Advisory Coiiunittee. In the present case, eleven Officers in Above Super Time Scale were workmg in ftie State of M.P, ftiat is whv it was decided tfaat two Of&cers of Above Super Time Scale should be sent to the State of Cbliattisgarh t6 mnmtnm 26.23% ratio to be allotted to the State of Chliattisgarh. As mentioned above, as against six sanctioned posts eleven Of&cers were working because five Offieers m the Above Super Tim.e Scale were working on deputation. There.fore, in conformity of the mandate issiied by the Central Govenuaent through fhe above giudelines in sub-clause (2) of Part- IV, flic fiiial aUocation of atl einployees should be such fhat it is -.' evenly distributed in respect of age aud seniority so as to make coinposite and balanced cadre ia fhe successor States. This is uecessary to ensiire that proinotional prospects of individuals are neifher uuduly accelerated nor substantiaUy reduced ia the successor States to which they are finally allocated. Apart froin fhat clause (4) ofpart-1 ofguidelmes dated 22.03.2001 (Aimexure P-10) lays down that if field posts are niore or less fhao. 26.23% ratio ia the successor States, in exceptional cases, ex-cadre posts can also be distributed accordiag to fhe ratio. Sub-clause (19) of fhe above guideliaes iurther envisagcs fhat for allocation, fhe advice offhe two Hon'ble Chief Jusuces will be taken separately. Thercforc, while making fhe fuial atlocation, fhe relevaat factor before the two, // V\" @) 25 ^ Hon'ble Chief Justices was to distribute tbe OfScers evenly and also to takc iato considcration that ia cifhcr of succcssor States thc proiuotional prospects of iadividuals are neifher unduly acceleiated uor substaittiaUy reduced to wbich fhey are fixiatty aUocated. Therefore, out of eleven OfBcers workiag ia fhe Above Super Time Scalc two Of&cers were aUocated to fhe State of Chliattisgarh. Morcovcr, sub-clausc (9) of Part-IV of fhc abovc guidclm.es lays down that ''notwifhstan.din.g thc giudcliaes iudicated above, fhc State Advisory Conunittee would be at Uberfy to consider any principle/factor which may beconie crucial in deddiag the aUocation of einployees to fhe successor States\". The coiabined reading of sub-clauscs (2) & (9) of Part-IV inakcs it clcar fhat whUc advisiug fhe Central Govemment, the pruiciplcs and relevaut factor before the Hon'ble two CluefJustices were how to take care of both these claiises in onler tn inake eqiial distrihiition ofall tTie clRVRn OfRcers of Above Super Time Scale, so fhat pToinotional prospects of iudividuals arc ncifhcr uaduly accclcrated nor substantiaUy rcduccd ia the succcssor States. That is why, in their wisdoin, they adopted the above procedure to allot two Of&cers carrying the Above Super Tiine Scate to the siiccessor State ofdihattisgarh. 39. Now, comiag to fhe question that as to how two Officers could have . been accoituuodated ia the State ofCtihattlsgarh iu th.e AboveSuper Tinie Scale, iu the State of M,P. since five OfScers were workiug on. deputation out ofwhich one oa fhe post of Principal Law Seeretaiy and one on fhe post of Registrar General were workiog and the pay scale admissible to the Ofl&cers posted on these posts was the same as those Ofi&cers canyuig or drawiag at the tuue of ftieir posting on the.se posts. So is the case of State of Chhattisgarh also. The Registrar General pf this High Court could have beea posted who was canying ftie Above Super Time Scale aad fhat beiag ao. ex- cadre post, ons OfficerofAbove Super Tuue Scale coiud have been acconuuodated as Registrar Geneial aad aaofher OfBcer could have been posted m ftie saactioned aflocated sfa-engfh of cadre post. Apart fix>m this, as mentioned above, the post of Pruicipal Law Secretaiy was also available ia the State of Chltattisgarh and on that post also aa OfBcer in fhe Pay Scale ofAbove SuperTime could have been posted. That is how Mr. A.K. Tiwari, who was canyiag o (^ <~_--' 26 the Above Super Pay Scale, was ia fact posted ia fhe State of Chliattisgarh as Principal Law Sccrctaiy aud hc was canymg thc Above Super Tim.e Scale tiU his retirement on the post of Principal Law Secretajy of tlie State of Chhattisgarh. Therefore, even if one cadre post was surrendered in favour of the State of Chhatdsgarh, - two OfBcers canyiag Above Super Time Scale could have been aUocated to thc State of Chliattisgarh sincc, thcsc two cx-cadrc posts wcre available for postiag ofAbove Super Time Scale Officer. 40.Now, coEung to fhe question fhat Mr. D.S. Jaia was granted Above Super Time Scale w.e.f. 10.08.2001, if iQ fhe final aUocation twu Officers were to be aUocated on 07.12.2001 canyiag Above Super Time Scale then respondents 6 & 7 could not have been aUocated in the final Ust to tbe State of Chliattisgarh, as Mr, D.S. Jam. was already working ia the Above Super Time Scale ia the State of Cbliatdsgarh, we are of ffae opiaion that grant of Above Super Time Scale to Mr. D.S. Jaia. was not at aU legal for the reasons that on fhe date of graat of pay scale i.e, 10.08.2001, Mr. A.K. Tiwari was already canying Above Siiper Time Scale and Mr. B,K. Shrivastava was already provisionaUy allocated to the State of Chliattisgarh ou 07.06.2001 aad two OfBcers were to be allocated to the State of Chhattisgarh; when there were already two Officers workmg ia fhe .Above Super Time Scale flien Mr. D.S. Jam could not have been granted Above Super Time Sca-le on 10.08.2001. Moreover, clause (c) of Part-5 of the guidelmes issued by the Central Govenunent on 13th September, 2000, cnvisages fhat \"aQ. recruitaients agam.st . vacancies in the iuterim i.e. tiU issue of fhe final allocation orders niay be kept iu abeyaace. Wherever, panels have been drawn but not pubUshed they inay be kept ni abeyance tiU reoi^anisation of States is given effect to\", Thereforc, in view of fhis clause also during this interim period i.e, froia the appoiated day tUl fhe final aUocation of the eiaployees no vacant posts were to be fiUed up and those were to be kept ia abeyance. Therefore, ia vievv of fhis provision also Mr. D.S, Jain ought not to have been granted fhe Above Super Tiine Scale, tiU the fiDal aUocation as per sub-sections (2) & (3) ofSection 68 offhe M.P. Reoi^aoisation Act, 2000, wbich envisages that even the persons who were provisionaUy aUocatEd to '^••:-: vfi^ ^7^ 27 /• the successor State can also be changed to ofher successor State in final aUocation. 41.Apart from the. above, perusal ofthe. record reveals that the graut of Above Super Tinie Scale to Mr. D.S. Jaui was not justified aad correct for fhe reason tfaat on 10.08.2001, fhe fhen Registrar General of the H^h Court placed a note before fhe conipeteut authority tbr grant ofAbove SuperTime Scale to Mr. D.S. Jaia. The Registiy's proposal see.ktag approval froin the coinpetent authority wifhout getting fhe same approved by FuU. Court of Chhattisgarh High Court was not legal. It is true fhat the nam.c of Mr. D.S. Jaia was approved for grant of Above Super Ticae Scale by the Madhya Piadesh High Court, but after tbrmation of fhe uew High Court ia the State of Chliattisgarh when Mr. D.S, Jain was allocatcd to the. State of Chhattisgarh, the Registiy ought to have placed his niatter before fhe FuU Court of Chhattisgarli H^h Coiut for grant ofAbove Super Time Scale. The resolution of the Full Court of M.P. High Court could uot bave been inade basis Ibr grant of Above Super Tim.e Scale to Mr, D.S. Jam. in the newly created High Coiu-t of Chliatdsgarh. ^- 42.Even ofherwise, on 10.08.2001, no third postwas available for graat of Above Super Time Scale because, on fhat date Mr. A.K. Tiwari was already workiag in the Above Super Time Scale aiid he was workiug as Pruicipal Scciclaiy (Law) iu thc Slatc of Chhallisgai-h uu ex-cadre post aad Mr. B.K. Shrivastava who was already ia the Above Super Tim.e Scale was also .working in the State of Chliattisgarh. Therefore, against one cadre post Mr. B.K. Shrivastava was atoeady available in fhe Above Super Time Scale calcgoiy. Whcu Mr. B.K. Shiivastava was ahcady aUocalcd lo llic State of Chliattisgarh on 07.06.2001, and he was drawiag Above Super Time Scale, therefore on 10.08.2001 there was no reason before fhe Registiy to make a note that, 'At present m cadre, no Judicial OfScer is getting Above Super Time Scale. One post of Above Supcr Timc (iu cadit;) is lyiug vacaul. Thcrefure, Slui D.S. Jain may be considered for fhe grant of Above Super Time Scale fi-om fhe date of order.\" On fhat day, Mr. B,K. Shrivastava, was drawing Above Super Time Scale even though he wasworking as t>, @> 28 District Judge/O.S.D. fVigUance) ia fhe H^;h Court of Chliattisgarh. But that post was crcated by thc State Govcmiacnt vidc ordcr No.4161/?TT021-cF/2001/®.'T.dated 10.08.2001 in the pay scale of Rs.18,000-22,400/- i.c. thc SupcrTimc Scidc. Thcrefore, Mr. B.K. Shrivastava's posting on this postwas notjustified, as this postwas not canying the Above Super Tiine Pay Scale. Agamst the Above Super Tiaie Scale cadre post, Mr. B.K. Shrivastava was available. Therefore, fhe proposal ofthe Registiy for graat ofAbove SuperTuue Scale to Mr. D.S. Jaiu was uot justiucu. TIic Rcgisliy had UTm.ecessarily placed the proposal before fhe Hon'ble coinpetent aufhority for grant of Above Super Time Scale to Mr. D.S. Jaiu without any post available. However, Mr. D.S. .Inin has retired aad graat of Above Super Titae Scale to Mr. D.S. Jain. has not been chaUcugcd, thei'cfoic, wc aie uul givuig auy diicctiuu for withdiawal ofthatbenefitto Mr. D.S. Jain. 43. Now, coiiung to fhe question of aUocation of respondents 6 & 7, respondent No.6 (Mr. B.K. Shrivastavaj imtiaUy gave his option for the State of M.F., but later on before expiry ofprescribed tune for giving cTiange of option, he cTianged his option for e StatE: of Chhattisgarh. Principles govemiag the aUocation were wiUiagness, honie district and factuni of husbaud & wife beiag in Goverrunent -service. Mr. B.K. Shrivastava gave his option for fhe State of Chhattisgarh. Theretbre, his final aUocation to the Slation of Chhattisgarli caTinot. be said to he in contraiy to the.giiirielines. As far 3's the case of Mr. V.K. Shrivastava, respondent No.7, is concemed, it is admitted position that he is resident of District: Jagdalpur, State of Chliattisgarh. Even though, he had not given aay option, but looking to his residence, Hon'ble flie two Chief Justices werc within their right to advice the C-entral Govenunent to allocate Mr. V.K. Shrivastava to the State of Chhattisgarh. Sub- clause (b) of Part-4 of the guidelmes dated 13th September, 2000, envisages that it would be open for fhe Govenunent to post fhem. eifher provisionaUy or on final basis m. aay successor State in. adimnistrati.ve interest or m. the exigencies of pubUc service. Moreover, on fhe basis of guidelines issued, uo other Officer ia fhe^ ^y- 29 Above Super Tiuie Scale was available for final aUocation to the State of Chhattisgarh. ABDICATION OF POWEI^ 44.Leamed counsel for the petitioner further subnutted fhat ttie Central Goverrunent abdicated its power vested ia it as per Section 68 of the M.P. Reorganisation Act, 2000. The Central Govemment left it to the decision of the High Court for allocation of the Officers acnd uot applied its mind. Thercfore, it camiot be said to be valid exercise of powers by the Central GovenLment. Wifh due regard to the leamed counsel for fhe petttioner, fhere is no force in. fliis arguiueiit also, for the reason that as per the guidelmes prepared by the Advisory Coininittee constituted under Section 71 of fhe M.P, Rcoi^arusation Act, ia its incetuig dated 23rd & 24th of Fcbruaiy, 2001, vide sub-clause 3.6 of Part-3, fhe Advison7 Cbmmittee m. its wisdom after takmg into consideiation fhe specialty of serv'ices of einployees of fhe Legislature and High Court, decided to have the advice of HonTile the Speakers of bofh fhe Asseinblies and Hon'ble the Chief Justices of botfa fhc High Courts, Evcn as per thc iSuidelm.es issued by the Reorganisation Cetl on 22nd March, 2001, vide sub-clause (3) of Part-3 aad explanation of sub-clause (2) of parts 3.3 & 3.6, the advice of HonT3le fhe Chief Justice was to be sought in the aiatter of aflocation of Judicial Officers to the successor Statcs. Even Hon'blc the Law Minister of Central Goverament wrote a letter to the HonTile Chief Mtnister of Madhva Pradesh (Annexure R-3-9, page 466 of ttie paper book) on 04.09.2000 to have the consultation with Hon'ble the ChiefJustice of Madhya Pradesh High Court iu the inatter of aUocation ofjudicial officcrs. In the Ught of fhese guidelincs, the advice of Hont)lc fhc Chief Justices was sought. Hon'ble ttie two Chief Justices iu ftie meeting held on 08.09.2001 considered the question ofaUocation of Judicial Of&cers to successor States and ia the light of guidelmes issued by fhe Cen.tral Goverruiieiit representations of judicial o.8iccri wcre also considcred and accordiagly, Miriutes were prepared and in. those Miuutes flie two Hon'ble Chief Justices gave their advice for aUocation of aU. fhe Judicial Of&cers to the successor States iacludiag the aUocation of/ Y^ <^> 30 < •^ respondents 6 & 7 in fhe Above Super Tirae Scale csiiEgory of Higher Judicial Scrvicc cadrc. Thc advicc was scnt to thc Ccutral Goveminent aad fhe Central Oovenunent consideruig the advice given by the two Hon'ble Chief Justices issued fhe final Ust of aUocation dated 07.12.2001. 45.The aigument of fhe learaed counsel for the petitioner is without tbrce Ibr fhe reason that ftie perusal ofthe additioual reply on behatt' of respondent No.5, Union of India, reveals that Mr. R,R. Prasad, Director (SR), Ministiy of Persortuel, Public Grievances & Pensions, Department of Personiiel & Tranung, GtoverDinent of India, on receipt ofletter dated 11.09.2001 BTOIU fhe Registrar General ofM.P. H^h Court (Annexure R-5/1), made a queiy to the Registrar General that cadre strength is 988, whereas 1051 Of&cers axe. on roU for final aUocation, how this discrepancy has crept in. The clarification was given by the High Court of M.P. that as large number of Officers are on deputation that is why inore niunber of Officers arc on roB. than ttie actual strengttt and the representations we.re also considered by fhe two Hon'ble Chief Jiistiees while giviiig fhe advice for final allocation. It was fi.irther clarified that the basis of aUocation has been fhe nuniber of Courts actuaUy functioniiig iii seven Districts formiag the State of Chhattisgarh aud on the basis i.. of the needs of ttie newly constituted Chliattisgarh H^h Court. It is also clarified that the guidelines received fixiia the Central Govenunent have been foUovved namely, factors Uke wiMingness of the Judicial Officers, their home distnct and factmn ofhusband and wife being in Cjovenunent service were taken. into consideranon. Thereforc, it is ctear from this ftiat wlule giving the advice, fhe Hon'ble Chief Jiistice.s considered the guideluies issiied by the Central Goverrmient, ground reaUti.es and requirements of fh.e newly created State as also fhe representations of ftie Of&ccrs aiid fhe same was sent to the Central Goverrunent for approval. The Central Govenunent after eonsideruig and seekmg clarificatiou, as inentioned above, fl~oin the Registrar Genexal issued fhe aUocation Ust Thereforc, it is incorrect to say that the decision was taken by fhe two Hon'ble Chief Justices ia respect of final allocation. It cauuot be termed as that the final decision of aUocation was of Honlle the Chief Justices and Central Govemment has not appUed/ 31 its miiid. It is a diEFerent iiiatter that after considering fhe advice givcn by fhc two Hon'blc Chicf Justiccs of thc bofh fhc High Courts and after seeking clarification froni the Registrar General offhe M.P. H^h Court, the Centeal Govenunent accepted it iu to-to. It does not niean. that fhe Central Govenunent has aot appUed its nuud and abdicated its powers. 46.In ttus connection, as has been Iield by the HonT3le Apex Court in the case of Union of India and another vs. P.K. Roy and others reported ia AIR 1968 S.C. 8SO iu para 10, dispeUiag fhe arguinent of Mr. Aslioke Seu fhat fhe preparation of fhe provisional and final gradation lists by fhe State Govenunent constituted a delegation of powers by fh.e Ceutral Govenunent, the Apex Court said that, \"fhere is no substence in fhis aigument. It is not disputcd thal Uic pi'uvisioual aud the fiual gi-Eidauuus Usts we.re prepared by the State Govenuneut on the. principles laid down by the Central Goveuuueut itself subject to one chauge m. the matter of determiniag seiuority and the provisional giadatiDn list was sent for approval of fhe Central Govenuneut together wifh rcprcscntations madc by thc officcrs conccmcd for beiag dealt wlth aad decided upon by fhe Central Govemm.ent, The prmciple of fhe maxun 'delegatus nou potest delegare' has therefore s.o apptication to the present case. Delegation in its general sense does not itaply a parting with statutory powers by the authority wtuch graats fhe detegation, but points rafher to the conferriag of au authority to do thiags which otfaerwise fhat adnimistrative authorily would have to do for itsetf. If, however, fhe adinitiistrative aufhority naaied in the statae bas and retauis in its hands general control over the activities of the pei-son to whoin it has entrusted ia part the exercise of its statutoiy power r aad th.e control exercised by fhe adiiiinistiati.ve authority is of a substantial degree, therc is ia the eye of law no 'dclcgation' at all. In ofhcr words, if a statutoiy authonty empowers a delegate to undertake preparatoiy work and to take an JTiitia1 decision in matters entrusted to it but retains in its own hands the power to approve or disapprove the decision. after it has been taken, fhe decision wffl be heM. to have been validly inade if ffae degree of control luaintaiaed by the aufhoriiy is elose enough for the decision to be regarded as the authorily's own.\" ITI t.hc light oftliR ahovejndgmeTit oftTie Hon'ble Apex Coiirt, in ttie. present case also, the authority and over a!l control was with the Central Govenunent aad Central Govenunent sunply asked fh^ •1> 32 ~l, advice of both fhe Hon'ble Chief Justices and to prepare the list of Judicial OfBccrs for allocation to thc two succcssor States bascd cn fhe guidelines issued by the Central Goverruncnt. As inentioned in the guidelines aad looktug to the specialty of the services, the Hon*ble Chief Justices were requested to advice for aUocation of - Judicial Of&cers for the successor States and accordingly, the two Hon'blc ClucfJusticcs got prcparcd fhc list and thc samc was scnt for approval to the Central Goveminent. Therefore, ia view of the above law Jaid dowu, this exercise caanot be held to be abdlcatiou of powers by the Central Govermnent. 47.In the case of Uaion of Indla vs. G.R. Frabhavalkar aad others reported ia AIR 1973 Supreme Coer FdAruddin, J, I have the advautage of reading the order of esteemed learaed Brother Hon'ble L.C. Bhadoo, J. and I agree with tfie conclusions to which he has reached. However, I would like to point out my own reasons in the matter. 2. The petitioner in W.P. No. 414/2002 has challenged the order No. 14-2-2000 S.R.(S) dated 7-6-2001 passed bythe respondent No. 5 ordering provisional allocatioin of respondent No. 6-Shri B.K. Shrivastava, retrospectively from 1-11-2000 to Chhattisgarfa under Section 68(1) ofthe M.P. Reorganisation Act 2000 and further the joining report ofrespondent No. 6 in the High Court of Chhattisgarh. The petitioner has farther challenged tiie order No. 14/46/2001 S.R.(S) ofAe respondent No. 5 on 7- 12-2001 issuing a Ust offinal allocation of203 Judicial Qfficers to the State of Chhattisgarh wherein under the above Super Time Scale Category, the respandents No. 6 ;md 7 have been shown as allocated linally to the State CofChhattisgarhw.e.f 1-11-2000. '7^'s- 3. In Ifae writ petition No. W.P. 414/2002 following reliefe are claimed:- \"(i) This Ron. Court may kindly bc plcascd to send for the entire record from the possession of the respondents for its kind perusal; (ii) This Hon. Court be pleased to quash the impugned order dated 7-6-2001 (annexure P-1) and the final allocation of respondent No. 6 and 7 to Ifae Chhattisgarh vide order dated 7-12-2001 (Amiexure P/2) and Ihe joining reports of Shri B.K. Shrivastava dated 29-6-2001 aad Shri V.K. Shrivastava date 24-12-2001 as void, illegal, arbitrary and opposed to law. (iii) This Hon. Coiirt be pleased to issue a writ of prohibitioa against the ofiGcial respoadents restraining them fix>m processing tfae names of respondents No. 6 and 7 for elevation to the High Court ofChhattisgarh. (iv) This Hon. Court be pleased to direct the ofl5cial respondents to restore the position ofthe petitioner in contbnnity with tiie order No. 14/2/2000-SR(s) dated 16-7-2001 (Annexure P/7) aUocating 199 judicial officers to the State ofChhattisgarh for aU purposes. (v) Any other appropiate writ or order CM- direction which this H<». Court deems just, may also be passed in Ifae interest ofjustice; (vi) Cost ofthe petition. 4. 'llie petitioner ia W.P. No. 1269/2001 has ehallenged the order No. 14/02/2000 - SR(s) dated 07-06-2001 passed hy the respondent No. 1 ordering provisional posting ofrespondent No. 6. Shri B.K. Shrivastava in Chhattisgarh retrospectively w.e.f. 1.11.2000 under Section 68 (1) ofthe M.P. Reorganisation Act 2000 and furtherjoining duty by respondent No. 6 in lUgh Court ofChhattisgarh, Bilaspur. The petitioner has claimed the fiUowmg reliefs in the pelilion No. 1269/2001:- \"a. The impugned order dated 7-6-2001 (Annex. P/l) issued by respondent No. 1 be kandly quashed. b. The petitioner prays that he be kindly awarded fhe above Super Time Scale w.e.f. 1.11.2000 since the date that in cadre post is available, as petitioner has already been approved for award of above Super Time Scale in Ifae full Court me^ing ofHon'ble High 3-^ Court ofMadhya Pradesh in their meeting held on 08.07.2000. c. That, final allocation Ust dated 7-12-2001 annexure A/X in respect ofrespondent No. 6 aad 7 in above super time scale category be kindly quashed.\" 5. It is appropriate to refer the avennents and groimds raised in the petition and also raised by respondents in their rehim briefly. However, since maia arguments have been advMiced in W.P. No. 414/2002, the pleadnigs and documents referred to in this order are mainly from W.P. No. 414/2002. 6. The petitioner coirtends that on the basis of options given by the Judicial OfiBcere, a Committee Coiistifaited by the respondenit No. 4 recommended provisional allocation of 199 Judidal Officers and a list was issued by the respondfint No. 5. It is contended that subsequeutly Ihe respondent No. 6 opted for State of Chhattisgarh which was forwarded without eoncurrence ofthe ffigh Court as required under Article 235 oftiie Constitution oflndia. It is submitted fhat ground urged in groimd No. 6.1 is fhat tfae the impugned order dated 7-6-2003 (Annexure P-1) issued by the Utiion of India provisiotially allocating Shfi B.K. Shrivastava with retrospective efifect w.e.f. 1-11-2000 to Chhattisgarh is issued in blatant violation ofthe mandate ofSeetioa 68(1) oflhe M.P. Reorganization Act, 2000. Subnussi') So far as the Above Super Time Scale granted to Shri D.S. Jain is concenied, the inattef has beai coiisidered in paragraphs 40, 41 and 42 of the order of the leamed Brother. I would like to say that Shri D.S.Jain in the petition claimed with effect from 1-11-2000 whereas the Hi^i Court of Chahttisgarh has granted the same with eflect from 10-8-2001. 23. Stand of the High Court of M.P. is also to the efFect tiiat it was for the Higji Court of Chhattisgarh to consider aad grant. The High Court of Chhattisgarh has granted the same. The grant has not been challenged. 24. In this regard Ihe respondent No. 6 has laken his stand in para 6 of fte retum filed in W.P. No. 1269/2001. Para 6 ofthe retum is quoted below:- \"That the petitioner is not entitled to any of the reliefs claimed in para 7 of the petition. IIowever, this respondent makes a fiirther subaussion that the petttioner has not filed this petition with bona fide mtenlions in as much fi-om the yonlenlions of para 6.13(B) of —'•— 77« ; 15 the petition., it is clear that tfais respondent is senica- to even Shri A.K. Tiwari aad since the latter joined in the Ex-Cadre pcst ot Law Secretary and since on the appointed day i.e. 1-11-2000 this respondent was woridng as District Judge, Durg on fhat date, tiie pctitioner is not at all prejudiecd or aflfcctcd by the impugned cu-der anA therefore, he has no pievance to make. It is furtfaer submitted tiiat graat ofany scale aiid fixing a date fherefor is the exclusive discretion of the Hon'ble Hi^i Coort and the petitioner has already been granted 'Above Super Time Seale' as mentioned above. The final allocation has also been made and Shri V.K. Shrivastavaq, also junior to this respondent and drawing the 'Above Super Time Scale' has been atlocated to Ifae State ofChhattisgariiand posted as District Judge, Raipur. Therefore, in fact as per the eontentions of Ifae petition, the'Above Super Time Scale' granted by Ihe Hon'ble Hi^i Court of Chhattisgarh to the petitioner w.e.f. 10-8-2001 deserves to be witlidrawii at least from tiie date Slni V.K. Shfivastava has joined as District Judge, Raipur.\" 25. In paras 40, 41 and 42 of the order, it has been observed that Ifae graut ofAbove Super Time Seale to Mr. D.S. Jain was not at all legal and justified. With respect, I do not subscribe to the conclusions reached at by ruy leamed Brother and I ani of the opinion that Shri D.S. Jain was the person who was on tiie substantive post ofDistrict Judge, Raipur whereas ths A.K. Tiwari and respondent No. 6 Shri B.K. Shrivastava both were on Ex-Cadre. I held that the said benefit doesw not deserve to be withdrawn as ttie saiiie has rightly been grairted. Iti my opinion there is also nothing wrong in fhe posting of Shri B.K. Shrivastava as District Judge OSD (Vigilence) as on that day the post was available. Shri B.K. Shrivastava has not raised any grievanee on that posting. So tar as Full Court is concemed, parties have not challenged the same on that ground and I refrain mysetf &om expresseing any opinion on that as for arriving that, the parties have to be put on notice including the Hi^ti Court. 26. One aspect deserves to be dealt with vAich relates to the submission uf rfipresenlation for uhange of uption flum State of Msidhya Eradesh to 16 State ofChhattisgarh by respondeiit No. 6. respondent No. 6 submitted that there was misunderstandiag. Leamed counsel for the petitioner strcancously argucd that thc rcspondcnt No. 6 subBaittcd a representation for cbange ofoption on 11 January. Tliis he had done while he was still serving as District and Sessions Judge, Durg. He had forwarded a copy of the same to the Hi^i Court of Chhattisgarh as well. The then Registrar General forwarded the same intially with the recoiiunendation of Hon'ble the Chief Justice and subsequently wrote that the Hi^i Court of Chhattisgarh had no objection. Shri manindra Shrivastava, leanied eounsel appearing far Ihe High Court of Chhattisgarh submitted that this was not placed before the Full Court. Normally that would have been better had the same been placed before the Full Court ofthe High Court of Chhattisgarh at tiiat time but stoce that had uot beeti doiie tlie pt-ocess is not vitiated. The representation was to be considered by the Central Govemment. The High Court of Chhattisgarh and that of Madhya Pradesh coiild have given the reeommendation for and a^isnt, but the decision was to be taken by the Central Govemment. The Central Govemment has taken the decision and has issued the order and the decision was consciously taken and it was within the domain of the Cenlral Govemmetit and that having been done, the uttimate decision ofthe Central Govemmeiit camiot be set aside on this ground. ^i^w 27. Onefaspeet deserves to be considered is reliefNo. 7(iii). So far as the < relief No. 7(iii) in W.P. 414/2003 regarding issuaace of a writ of prohibition against tihe official respondents restraining them from processing Ihe names ofrespondents No. 6 and 7 for elevation to the High 17 Court of Chhattisgg^Tis concemed, matter is settled by tfie decision oflfae Apex Court m R.K. Mahajan v- ChiefJustice ofHimachal Pradesh High Coun and othcre d995f3) SCC 655. Para 4 and 7 of the decision are relevant and quoted below:- ^ \"4. The appomtment to the superior courts is a constitutional process. It cannot be dealt wifh at the level ofinter se seriiorfty even so far as appointment from the judicial serviee is c
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