Judgment:
1. After having heard learned Counsels appearing for the parties and considering the facts and circumstances, as well as, the relevant proposition of law and the case relied on by learned Counsel for the appellants, we are of the opinion, that the appeal is meritless and deserves to be dismissed at the threshold on the following grounds. Therefore, let there be a few material relevant facts with a view to examine the merits of the issue involved in this Letters Patent Appeal under Clause 10 of the Letters Patent against the order of the learned Single Judge dated 23.8.2005 in C.W.J.C. No. 11776 of 2004:
(i) Petitioner No. 1- Association has challenged the notification of the State Government dated 1.9.2004, whereby and whereunder, certain post of Flying Squad came to be abolished, a copy of the order is produced at Annexure 2.
(ii) It was questioned before the learned Single Judge. The learned Single Judge dismissed the writ petition. Therefore, this Letters Patent Appeal against the impugned order of the learned Single Judge.
2. The main contention of learned Counsel for the appellants Mr. Siya Ram Shahi has been that:
(a) the abolition of permanent post is contrary to the provision of law, particularly, Article 309 of the Constitution of India,
(b) for that he has further submitted that the decision was taken by the Secretary and not by the Government, and
(c) that the provisions of Section 73 read with Section 72 of the Bihar Reorganisation Act, 2000 have not be observed.
3. We have considered the entire record and relevant legal and factual profile. We find that all the three contentions are meritless. It is very clear from the record that the decision to abolish the post was taken by the State of Bihar at the time of Bihar Re-organisation Act, 2000. It is not the proposition of law that permanent post can never be abolished. It is a matter of a policy decision. If a competent authority takes a decision to abolish a permanent post it cannot be said violative of constitutional mandate. Again, there is no violation of Section 73 of the aforesaid Bihar Re-organisation Act, 2000. Section 73 of the Bihar Re-organisation Act, 2000 reads hereunder as:
73. Other provisions relating to Services-
(1) Nothing in Section 72 shall be deemed to affect on or after the appointed day the operation of the provisions of Chapter I of Part VIV of the Constitution in relation to determination of the conditions of service of persons serving in connection with the affairs of the Union or any State: Provided that the conditions of service applicable immediately before the appointed day in the case of any person deemed to have been allocated to the State of Bihar or to the State of Jharkhand under Section 72 shall not be varied to his disadvantage except with the previous approval of the Central Government.
(2) All services prior to the appointed day rendered by a person-
(a) if he is deemed to have been allocated to any State under Section 72, shall be deemed to have been rendered in connection with the affairs of that State;
(b) if he is deemed to have been allocated to the Union in connection with the administration of the Jharkhand shall be deemed to have been rendered in connection with the affairs of the Union,
for the purposes of the rules regulating his conditions of service.
(3) The provisions of Section 72, shall not apply in relation to members of any All India Service.
4. It pertains to other provisions relating to services. Before that is Part VIII of the Act which deals with the provision as to services. Section 71 makes a provision relating to All India Services, whereas, Section 72 of the Act makes provisions relating to services in Bihar and Jharkhand. There is no dispute about the fact that the Central Government at the time of reorganisation of Bihar into Bihar and Jharkhank had constituted an Advisory Committee. The Central Government is the final deciding authority and is competent to take assistance from the State in the matter. Judicial review is, also, limited only to the question whether the Governments takes a decision against the principles as formulated with the assistance of the State. This proposition is very well established. Other provisions relating to services are incorporated in Section 73 which we have quoted herein above.
5. It cannot he said from the record that abolition of the post is by the Secretary because the order is signed by the Joint Secretary. Reading the entire order produced at Annexure 2 it leave no any manner of doubt that the policy was taken by the State Government. Therefore, the submission that the Government has not taken a policy decision cannot be accepted.
6. Apart from that, the decision which is relied upon by learned Counsel for the appellants is rendered in 'Jawabar Lal Sazxwal and Ors. v. State of J.& K. and Ors. : (2002)IILLJ836SC . We have gone through the ratio desidendi propounded in the said judgment. If the facts of the present case are kept on the mental radar the said decision will not be attracted. In the said case there was a question of entrustment of the administration of the industrial unit by non-statutory rule abolishing the post in the industrial units. In the present case, a consensus decision was taken by a competent, authority under the relevant proposition of law as aforesaid. Here, there is no change of status of any employee transferred from one cadre to other or one department. to other department. There is a consensus decision at the time of re-orgination and subsequently by the State of Bihar that there were some additional posts on account of re-orgination of the State in so far as Fying Squad is concerned. That consensus decision was taken by the competent authority under the relevant provision of law and that has to be honoured. It cannot be said that it is contrary to law or policy and abolition of permanent post is prohibited under law. On the contrary, in the decision itself it has been observed that abolition of some of the posts of Flying Squad in the State of Bihar should not be treated as retrenched as affected employees shall have to be absorbed in other department of the Government and accordingly it has been done.
7. In this view of the situation, we find all the points raised in this appeal are meritless and this appeal deserves to be dismissed.
8. Accordingly, this appeal shall stand dismissed at the admission stage.