S. Ravindra Bhat, J.

1. In this batch of proceedings under Article 226 of the Constitution, the petitioners are aggrieved by their transfer/allocation to the State of Bihar in terms of provisions of the Bihar Reorganization Act, 2000 (hereafter called The Act).

2. All the petitioners were officers and employees of the erstwhile State of Bihar; upon coming into force of the, the State of Bihar was reorganized and two States, namely, Bihar and Jharkhand were created.

3. The Act came into force on 15.11.2000; it was enacted in terms of Articles 1 and 4 of the Constitution of India; certain guidelines had been formulated in September 2000 by the Central Government, dealing with the subject of allocation of posts. It created a Reorganization cell and indicated the broad parameters for allocation of personnel. Clause 4(b) of the guidelines indicated that it was open for the Government to post them either provisionally or on final basis in any successor State, in the administrative interest or in the exigencies of public service.

4. Clause 5(e) of the guidelines provided that where both spouses were working in the Government, it would be prudent to locate them to one State, as far as possible. The guidelines also indicated a general time-frame for setting up of reorganization cell, allocation of posts on provisional basis, preparation of list of personnel as provisionally finalized, and dates on which provisional allocations were to be made.

5. On 21st December, 2000, the Central Government set up a State Advisory Committee for purposes of allocation of personnel to either of the reorganized States. This Committee, with its Headquarters at Patna, started functioning and decided principles in consultation with both the States, namely, Bihar and Jharkhand, on the basis of which the Cadre of employees working as on 15.11.2000 were to be divided.

6. Tentative/provisional lists of employees were drawn, and proposed allocations to one or the other State, was sought to be effected. It is averred that the task is still continuing. Reliance has been placed upon a letter written by the Chief Secretary of Jharkhand dated 5.4.2005 to say that the State Advisory Committee had finalized tentative final allocation list of only 1,07,159 officer and employees out of which only 28,295 officers and employees of different departments had been finally allocated the State of Bihar and Jharkhand. The letter stated that the delay in preparing the list had led to dissatisfaction and in the view of the Government of Jharkhand, the State Advisory Committee had to be dissolved or wound up, and officers and employees functioning in either of the States had to be allocated/assigned their respective States on as is where is basis. The Central Government, by its order dated 9.5.2005, however stated that final allocation orders in respect of 47,432 personnel had been issued and that the process of issuing such orders had been expedited. The letter stated that the newly created State of Jharkhand was provided with a certain number of existing personnel on a provisional basis purely as an interim arrangement. The Central Government was of the view that all personnel deserved fair and equitable treatment; it would be possible only if the State Advisory committee was continued, and proceeded with its task. The request for allocation on as is where is basis was rejected on the ground that it would be a complete departure from the legally mandated procedure and guidelines followed in allocation of about 50,000 personnel till that time uniformly and also followed in the case of cadre allocation in all other reorganized States such as Madhya Pradesh/Chhatisgarh and U.P./Uttaranchal. The Central Government, therefore was of the view that departure from the established norms would open the floodgates to litigation.

7. All the petitioners complain of arbitrariness in Cadre allocation/ assignment. The cases before the Court fall into the following broad categories:

(1) Violation of the guidelines and procedure in issuing the transfer.

(2) Violation of Sections 72-75 of the in regard to adherence of time- frame and lack of jurisdiction.

(3) Non-enforcement of the stipulation of posting/allocating spouses working in the erstwhile State of Bihar, in one State.

(4) Ignoring request for mutual transfer.

(5) Violation of the reservation policy.

8. This Court had initially entertained some of the petitions and had directed status quo with regard to the posting of service conditions of the petitioners. The State of Jharkhand has filed counter affidavit in some of the petitions after repeated opportunities were given. The Central Government too has filed counter affidavit in a few petitions.

9. During the course of one of the hearings, on 8th September, 2005, the broad categories of cases had been recorded/indicated; Counsel for parties were requested to prepare synopses and the matters were set down for hearing.

10. The Central Government, at the outset, of the hearings, raised a preliminary objection as to maintainability of these proceedings under Article 226 of the Constitution. Counsels for the parties, therefore, were heard on the issue of maintainability before the matters could be proceeded with on merits. This course of action is not only appropriate, but also in conformity with the decision of the Supreme Court in Union of India v. Adani Exports Ltd., IV (2001) CLT 186=VII (2001) SLT 612=(2002) 1 SCC 567 [LQ/SC/2001/2506] .

11. Mr. Rajiv Shakdhar, learned Counsel for the Union of India submitted that almost all if not the complete elements constituting the cause of action in each of these proceedings, arose either in Bihar or in Jharkhand. The petitioners are employees of erstwhile State of Bihar. They are all seeking cadre allocations in the newly created State of Jharkhand. The mechanism created under the, namely, the State Advisory Committee does not function within the jurisdiction of this Court; it is located in Bihar. It has considered the cases of each of these employees and recommended issuance of necessary orders. The final orders, pursuant to the allocations made, have to be communicated at the concerned State, namely, the State of Bihar or Jharkhand where eventually the employee or official has to report for duties. Even if it is assumed that a fraction or fragment of the cause of action, namely, the cadre allocation orders under the are made in Delhi, that is only a culmination of the process, the dominant portion of which is outside the jurisdiction of this Court.

12. Learned Counsel for the respondents submitted that the High Courts at Jharkhand as well as Bihar have been approached by employees and officials complaining of wrong cadre allocations; from time to time orders and judgments have been delivered by those High Courts. The petitioners belong to an identical or similar class of employees and they cannot approach this Court merely on the circumstance that the Central Government acted upon or did not act upon the recommendations of the Committee or in accordance with the while accepting or rejecting the individual requests for cadre allocation in Jharkhand.

13. Learned Counsel for the respondents strongly relied upon the judgment of the Supreme Court in Kusum Ingots v. Union of India, 111 (2004) DLT 480 (SC)=III (2004) SLT 565=III (2004) BC 56 (SC)=2004 (6) SCC 254 [LQ/SC/2004/631] to say the mere issuance of an executive order or enactment of a legislation in one place could not ipso facto confer jurisdiction upon the High Court, where that order was issued or legislation enacted.

14. Learned Counsel further submitted that in any event even if it were assumed that this Court possesses jurisdiction, nevertheless it ought not to exercise discretion and entertain these proceedings on the ground of forum convenience. It was submitted in this respect that having regard to the circumstance that all the documents and records, particularly, the records of deliberations of the Advisory Committee were located in Patna and also that the individual records of the officials concerned were either in Bihar or Jharkhand, it would neither be expedient nor appropriate to entertain these proceedings. The result of entertaining the petitions here would be cumbersome and time consuming because the records of individual officials would have to be called for and the Governments of Bihar and Jharkhand would have to make special arrangements in that regard. The Counsel submitted that the Central Government, on the other hand could be sued throughout the territory of India and it would be very convenient if the petitioners, who are all located within the State of Bihar or Jharkhand, approach one or the other of those High Courts for relief.

15. Learned Counsel for the petitioners, on the other hand submitted that this Court has jurisdiction to entertain these proceedings and adjudicate upon the merits. It was submitted that the is a Parliamentary enactment; the executive action concerned, namely, the allocation orders are passed by the Central Government. Hence at least a part of the cause of action arises within the jurisdiction of this Court. Once if this aspect is admitted, the fact that the petitioners make a choice and elect the forum, concludes the issue and they cannot be compelled to approach any other High Court. Learned Counsel relied upon the decisions reported as Oil and Natural Gas Commission v. Utpal Kumar Basu, 1994 (4) SCC 71 and Navinchandra N. Majithia v. State of Maharashtra, VI (2000) SLT 528=2000 (7) SCC 640 [LQ/SC/2000/1308] to say that this Court has territorial jurisdiction to entertain the disputes.

16. Learned Counsel further submitted that by virtue of judgments of the Supreme Court, Article 226(2) which was introduced by way of an amendment, has been interpreted in a manner similar to Section 20 of the Code of Civil Procedure, so as to mean that the Court would have jurisdiction even if a part of the cause of action, in a given case, arises within the jurisdiction of the Court.

17. The following observations in Navinchandra N. Majithia v. State of Maharashtra (supra), were relied upon, by Counsel for the petitioners:

The collocation of the words cause of action, wholly or in part, arises seems to have been lifted from Section 20 of the Code of Civil Procedure, which Section also deals with the jurisdictional aspect of the Courts. As per that Section the suit could be instituted in a Court within the legal limits of whose jurisdiction the cause of action wholly or in part arises. Judicial pronouncements have accorded almost a uniform interpretation to the said compendious expression even prior to the Fifteenth Amendment of the Constitution as to mean the bundle of facts which would be necessary for the plaintiff to prove, if traversed, in order to support his right to the judgment of the Court.

39. In Read v. Brown 10 Lord Esher, M.R., adopted the definition for the phrase cause of action that it meant

every fact which it would be necessary for the plaintiff to prove, if traversed, in order to support his right to the judgment of the Court. It does not comprise every piece of evidence which is necessary to prove each fact, but every fact which is necessary to be proved.

40. The Privy Council has noted in Mohd. Khalil Khan v. Mahbub Ali Mian that the aforesaid definition adopted by Lord Esher M.R. had been followed in India. Even thereafter the Courts in India have consistently followed the said interpretation without exception for understanding the scope of the expression cause of action.

41. Even in the context of Article 226(2) of the Constitution this Court adopted the same interpretation to the expression cause of action, wholly or in part, arises vide State of Rajasthan v. Swaika Properties. A three-Judge Bench of this Court in Oil and Natural Gas Commission v. Utpal Kumar Basu observed that it is well settled that the expression cause of action means that bundle of facts which the petitioner must prove, if traversed to entitle him to a judgment in his favour. Having given such a wide interpretation to the expression Ahmadi, J. (as the learned Chief Justice then was) speaking for M.N. Venkatachaliah, C.J. and B.P. Jeevan Reddy, J., utilised the opportunity to caution the High Courts against transgressing into the jurisdiction of the other High Courts merely on the ground of some insignificant event connected with the cause of action taking place within the territorial limits of the High Court to which the litigant approaches at his own choice or convenience. The following are such observations (SCC p. 722, para 12)

If an impression gains ground that even in cases which fall outside the territorial jurisdiction of the Court, certain members of the Court would be willing to exercise jurisdiction on the plea that some event, however trivial and unconnected with the cause of action had occurred within the jurisdiction of the said Court, litigants would seek to abuse the process by carrying the cause before such members giving rise to avoidable suspicion. That would lower the dignity of the institution and put the entire system to ridicule. We are greatly pained to say so but if we do not strongly deprecate the growing tendency we will, we are afraid, be failing in our duty to the institution and the system of administration of justice. We do hope that we will not have another occasion to deal with such a situation.

It was submitted that the state action in question here is a direct result of the guidelines framed under the, and were the orders of the Central Government; therefore, at least a part of the cause of action arose in New Delhi. Thus, this Court had jurisdiction to decide the disputes.

18. The object of constituting the State Advisory Committee, evident from Section 75(b) is to ensure fair and equitable treatment to all persons affected by the re-organization the proper consideration of any representations made by such persons. The order constituting the State Advisory Committee indicates that the States have to provide necessary infrastructure for its effective functioning. The State of Bihar also is responsible for furnishing details of sanctioned posts category-wise cadre-wise, grade-wise, department/directorate-wise to the State Advisory Committee to enable them to finalize distribution of posts between the successor states. Likewise, successor State Governments, have to furnish copies of necessary rules, orders, category-wise gradation list, etc. as may be applicable to various cadres for the benefit of the Advisory Committee. The successor State of Bihar has to furnish official comments on the representations received, and keeping in view the various rules, orders, etc. and would forward the same for further consideration of the State Advisory Committee.

19. Section 72(1) provides that every person who immediately before the appointed day is serving in connection with the affairs of the existing State of Bihar shall, on and from that day provisionally continue to serve in connection with the affairs of the State of Bihar unless he is required, by general or special order of the Central Government to serve provisionally in connection with the affairs of the State of Jharkhand. The proviso to Sub-section (1) puts a time limit upon issuance of such directions; it is one year from the expiry of the appointed date. Sub-section (2) empowers the Central Government by general or special order, determine the successor State to which every person referred to in Sub-section (1) shall be finally allotted for service and the date with effect from which such allotment shall take effect or be deemed to have taken effect. Sub-section (3) obliges every person finally allotted to the service or cadre of a successor State, to be made available to the allocated State.

In Kusum Ingots (supra), the Supreme Court held as follows:

26. The view taken by this Court in U.P. Rashtriya Chini Mill Adhikari Parishad that the situs of issue of an order or notification by the Government would come within the meaning of the expression case arising in Clause 14 of the (Amalgamation) order is not a correct view of law for the reason hereafter stated and to that extent the said decision is overruled. In fact, a legislation, it is trite, is not confined to a statute enacted by Parliament or the Legislature of a State, which would include delegated legislation and subordinate legislation or an executive order made by the Union of India, State or any other statutory authority. In a case where the field is not covered by any statutory rule, executive instructions issued in this behalf shall also come within the purview thereof. Situs of office of Parliament, Legislature of a State or authorities empowered to make subordinate legislation would not by itself constitute any cause of action or case arising. In other words, framing of a statute, statutory rule or issue of an executive order or instruction would not confer jurisdiction upon a Court only because of the situs of the office of the maker thereof.

27. When an order, however, is passed by a Court or Tribunal or an executive authority whether under provisions of a stature or otherwise, a part of cause of action arises at that place. Even in a given case, when the original authority is constituted at one place and the appellate authority, is constituted at another, a writ petition would be maintainable at both the places. In other words, as order of the appellate authority constitutes a part of cause of action, a writ petition would be maintainable in the High Court within whose jurisdiction it is situated having regard to the fact that the order of the appellate authority is also required to be set aside and as the order of the original authority merges with that of the appellate authority.

28. Lt. Col. Khajoor Singh v. Union of India whereupon the learned Counsel appearing on behalf of the appellant placed strong reliance was rendered at a point of time when Clause (2) of Article 226 had not been inserted. In that case the Court held that the jurisdiction of the High Court under article 226 of the Constitution of India, properly construed, depends not on the residence or location of the person affected by the order but of the persons or authority passing the order and the place where the order has effect. In the later sense, namely, the office of the authority which is to implement the order would attract the territorial jurisdiction of the Court was considered having regard to Section 20(c) of the Code of Civil Procedure as Article 226 of the Constitution thence stood, stating (AIR p. 540, para 16):

The concept of cause of action cannot in our opinion be introduced in Article 226, for by doing so we shall be doing away with the express provision contained therein which requires that the person or authority to whom the writ is to be issued should be resident in or located within the territories over which the High Court has jurisdiction. It is true that this may result in some inconvenience to persons residing far way from New Delhi who are aggrieved by some order of he Government of India as such, and that may be a reason for making a suitable constitutional amendment in Article 226. But the argument of inconvenience, in our opinion, cannot affect the plain language of Article 226, nor can the concept of the place of cause of action be introduced into it for that would do away with the two limitations on the powers of the High Court contained in it.

29. In view of Clause (2) of Article 226 of the Constitution of India, now if a part of cause of action arises outside the jurisdiction of the high Court, it would have jurisdiction to issue a writ. The decision in Khajoor Singh has thus, no application.

Forum conveniens

30. We must, however, remind ourselves that even if a small part of cause of action arises within the territorial jurisdiction of the High Court, the same by itself may not be considered to be a determinative factor compelling the high Court to decide the matter on merit. In appropriate cases, the Court may refuse to exercise its discretionary jurisdiction by invoking the doctrine of forum conveniens [See Bhagat Singh Bugga v. Dewan Jagbir Sawhney, Madanlal Jalanv. Madanalal, Bharat Coking Coal Ltd. v. Jharia Talkies & Cold Storage (P) Ltd., S.S. Jain & Co. v. Union of India and New Horizons Ltd. v. Union of India].

20. The above observations were made in the course of consideration as to what would be cause of action in the context of territorial jurisdiction of a High Court, in terms of Article 226(2) of the Constitution of India. It was held that the framing of a statute, statutory rule or issue of an executive order or instruction would not confer jurisdiction upon a Court only because of the situs of the office of the maker thereof. This decision is also in line with the judgment in Union of India v. Adani Export (supra). That judgment had distinguished the decision in Navinchandra N. Majithias case.

21. In the present case, all the material circumstances, viz. the service or cadre of the petitioners; the seat of the two successor governments, the petitioners service records, the State Advisory Committee and its determinations, are outside the jurisdiction of this Court. All the petitioners are serving in connection with affairs of the erstwhile State of Bihar. The only circumstance relied upon by them is that the Central Government, which passed allocation orders, did so from New Delhi. This factor alone is pressed home to say that a part of the cause of action arose in New Delhi, and this Court has jurisdiction in the matter. As held by the three-Judge Bench decision in Kusum Ingot, the mere fact that the situs of the authority issuing the executive or statutory order is located in Delhi, whereas all other facts and circumstances arose elsewhere, does not confer jurisdiction upon this Court.

22. There is one more reason in support of the conclusion that this Court should not entertain and hear these petitions. In the decision reported as Madan Lal Jalan v. Madan Lal, AIR 1949 Calcutta 495, the Court was concerned with the issue as to whether leave granted to a plaintiff to sue in respect of a part of the cause of action arising within jurisdiction where property and other materials were beyond the jurisdiction, was considered. The Court held as follows:

On a consideration of the legal principles established by the judicial decisions mentioned above it seems to me that balance of convenience is a material consideration in the exercise of discretion under Clause 12. From these judicial authorities the following propositions may, I think, be enunciated:

(a) that the application lies for revoking the leave granted under Clause12 of the Letters Patent;

(b) that such an application should be made at an early stage of the suit and delay and acquiescence may be a bar to such an application;

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(g) that in giving or refusing leave or maintaining or revoking leave the Court will ordinarily take into consideration the balance of convenience and may, if the balance is definitely in favour of the defendant, apply the doctrine of forum convenience.

23. The test of forum convenience was applied in subsequent judgments, and was noted, with approval, by the Supreme Court in Kusum Ingots (supra). Blacks Law Dictionary (Seventh Edition) page 665 defines Forum Convenience, as follows:

The Court in which an action is most appropriately brought, considering the best interests of the parties and witnesses.

Forum Non-convenience on the other hand, has been described as follows:

The doctrine that an appropriate forum even though competent under law may divest itself of jurisdiction if, for the convenience of the litigants and the witnesses, it appears that the action should proceed in another forum in which the action might originally have been brought.

24. In the present cases, all the petitioners are admittedly serving in connection with affairs of states, outside the jurisdiction of this Court. The Governments, of the two States, Bihar and Jharkhand, are not within the territorial jurisdiction of this Court. The state Advisory Committee is also located outside jurisdiction of this Court. Even if the writ petitions are to be entertained on merits, the files and records of the concerned Government, as well as the State Advisory Committee may have to be examined; affidavits of the concerned Governments would have to be elicited in each case. In view of these peculiar facts, the doctrine of forum convenience would be most appropriate in these cases, for the convenience of the parties. The grievances of the petitioners should be therefore agitated in the High Court of the concerned states, i.e. either Bihar or Jharkhand.

25. In view of the above conclusions, I am of the opinion that these petitions have to be dismissed, with liberty to the petitioners to approach either the Patna High Court, or the Jharkhand High Court, as the case may be. Interim orders had been issued at the time the petitioners had approached this Court. In the view of these peculiar facts, and also having regard to the circumstance that notice was issued, and interim orders have subsisted for the last few months, I am of the opinion that the ends of justice would be served if the interim orders issued in these proceedings are maintained by the respondents for a period of eight weeks to enable the petitioners to approach the appropriate Court. The continuance of such orders in no way a reflection on the merits of the cases; and it is not open to the petitioners to contend the concerned forum or High Court is bound to extend them for any further period, which would be on the individual merits of the cases. The respondents are therefore directed to maintain status quo as existing today, in respect of the petitioners services for a period of eight weeks from today.

26. The writ petitions and all pending applications are accordingly disposed of in the light of the liberty reserved, and observations made, in paragraph 25 above. No costs.