IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.9224 of 2010 *** In the matter of an application under Article 226 of the Constitution of India. *** Anil Kumar, aged about 44 years, son of Sri Birendra Kumar, resident of Flat No.204, Mahendra Apartment, North Patliputra Colony, Police Station Patliputra, District Patna…………………………………………………………………...Petitioner Versus 1. The State Of Bihar through the Secretary, Road Construction Department, Vishwesharaiya Bhawan, Bailey Road, Patna. 2. The Principal Secretary, Home (Special) Department, Old Secretariat, Patna. 3. The Principal Secretary, Personnel & Administrative Reforms Department, old Secretariat, Patna. 4. The Joint Secretary, Road Construction Department, Vishwesharaiya Bhawan, Bailey Road, Patna. 5. The Deputy Secretary, Road Construction Department, Bailey Road, Patna. 6. Ashok Kumar Ranjan S/o Sri Munsi Ram, Resident of Village Rajaram Narhawa, P.O. Narhawa Sukla, P.S. Gopalpur, District Gopalganj, Presently at near Krishna Kutir South of Anisabad Telephone Exchange, P.O. Anisabad, P.S. Gardanibagh, District Patna. Presently posted as Executive Engineer, Mechanical, R.C.D, Govt. of Bihar, P.O. Main P.O. Ara, P.S. Ara Nawada, District Ara………………………………..………………Respondents *** For Petitioner: Mr. Rupak Kumar, Advocate For State: Mr. P.K. Verma, Addl. A.G. XI with Mr.S.K.Sharma, A.C. to A.A.G. XI For Respondent no.6: Mr.Vinod Kanth, Sr.Advocate with Mr. Arun Kumar, Advocate *** P R E S E N T THE HON’BLE MR. JUSTICE JAYANANDAN SINGH O R D E R Jayanandan Singh,J: Heard learned counsel for the petitioner, learned counsel for the State as well as learned senior counsel for respondent no.6. Petitioner has filed this writ application for quashing of part of letter no.277 dated 03.02.2009 (Annexure-1), issued under the signature of Deputy Secretary, Department of Personnel & Administrative Reforms, Government of Bihar and addressed to the Chief Secretary, Jharkhand, by 2 which, inter alia, a decision of the Government that, in cases of transfer of the employees to the State of Bihar on mutual consent, their claim for seniority shall not be entertained, has been communicated for follow up action. He further prays for quashing of part of the notification contained in Memo No.2179 (S) dated 15.2.2008, issued under the signature of the Deputy Secretary, Road Construction Department, Bihar, Patna, by which services of the petitioner and others, who had applied for their transfer back to the State of Bihar on the basis of mutual consent, were returned in the Department on the condition that their claims for seniority shall not be accepted. He further prays for a direction to the respondents for restoration of his seniority in the cadre of Assistant Engineer (Mechanical), Road Construction Department, in consonance with merit list prepared by Bihar Public Service Commission at the time of his appointment. Foundational facts of the case are that, vide notification dated 09.05.1997 (Annexure-3), petitioner along with others was appointed on temporary basis as Assistant Engineers (Mechanical) in the Road Construction Department, Government of Bihar. Vide notification dated 27.08.2002 (Annexure- 4), a seniority list was prepared in which petitioner was placed at serial no.68, whereas respondent no.6 was placed at serial no.73. 3 Thereafter, in terms of the Bihar Reorganization Act, 2000, a list of employees of different departments was prepared by the Department of Personnel & Administrative Reforms, provisionally allocating their services to the State of Bihar or the State of Jharkhand and the same was sent to different departments for information by letter no.725 dated 30.06.2003. By this allocation of cadre, services of the petitioner was provisionally allocated to the State of Jharkhand. A copy of the said letter of the Department of Personnel & Administrative Reforms has been placed on record by respondent no.6 as Annexure-I with his supplementary counter affidavit. While final allocation of services of employees to different States, as proposed by the Department of Personnel & Administrative Reforms, was pending in the Ministry of Personnel, Public Grievances & Pension, Department of Personnel & Training, Government of India, it issued a letter dated 15th September, 2004, addressed to the Chief Secretary, Government of Bihar, which mentioned that, after final allocation of services of the State Services Personnel in the case of M.P./Chattisgarh, Government of India had received a large number of representations. Hence, broad categories were being laid down, in which it would be inequitable not to consider the representations. This letter of the Government of India has been 4 placed on record by respondent no.6 as Annexure-J with supplementary counter affidavit. One of the guidelines contained in the letter was that in case of request of the employees for mutual transfer with other consenting personnel, „it is open to the successor State Governments to consider requests of employees for mutual transfer based on broad consensus arrived between the State Governments, inter alia, either defining the terms and conditions for such consideration or by framing suitable Rules for this purpose‟. In view of the liberty granted by the Central Government to the State Governments, the State of Bihar, vide letter dated 21.05.2005 (Annexure-16), addressed to the Chief Secretary, State of Jharkhand, proposed to consider such requests of employees for mutual transfer, to be granted on certain terms and conditions and requested that, while giving concurrence to the same, applications received for mutual transfer may be sent. Terms and conditions laid down in the said letter were as follows:- 3%& fcgkj iquxZBu mPp Lrjh; lfefr ds vuq’kalk ij iwoZ fopkjksijkUr fcgkj ljdkj us fu.kZ; fy;k gS fd fuEukafdr cU/kst@”rksZa ds lkFk ijLij lsok LFkkukUrj.k ds ekeyksa dk fuLrkj fd;k tk;%& 1%& nksuksa dehZ ,d gh lsok ,oa laoxZ ds gksaA 2%& nksuksa dehZ ,d leku Lrj osrueku ,oa ojh;rk ds gksaA 3%& nksuksa dehZ ,d leku oSokfgd fLFkfr ds gksa] rkfd nEifr ds ekeys esa ,d gh jkT; esa inLFkkfir djus ds laca/k esa fu.kZ; dk Vdjko blls mRiUu ugha gksaA 4%& nksuksa dfeZ;ksa us iwoZ esa fodYi ugha fn;k gks vFkok muds fodYi ij fopkj ugha gks ldk gSA 5%& ewy :i ls ftl jkT; ds oklh gS mlh jkT; ds fy;s lsok vkoafVr djus ds fy;s vuqjks/k fd;k tk jgk gSA 6%& fcekjh vFkok vU; vkdfLed dkj.k ds mRiUu gksus ij vU; jkT; esa lsok 5 dk vkoaVu vko’;d gks x;k gksA vr%vuqjks/k gS fd mi;qZDr cU/kst@”rksZa ds vuq:i gh lgefr iznku djrs gq, ikjLifjd LFkkukUrj.k ls lacaf/kr jkT; dfeZ;ksa ls izkIr vH;kosnuksa dks Hkstus dh d`ik dh tk;A Accordingly, the State of Jharkhand, through letter no.2092 dated 01.07.2005, communicated its concurrence to the terms and conditions laid down by the State of Bihar in the said letter dated 21.05.2005. In the meanwhile, Government of India, through its order dated 13.09.2006, finally allocated services of the petitioner to the State of Jharkhand, and some others, as proposed by the Department of Personnel & Administrative Reforms through its said letter dated 30.06.2003. A copy of the said letter of the Government of India dated 13.09.2006 has been placed on record by respondent no.6 through his I.A. No.7421 of 2010 as Annexure-G, filed for intervention in the matter. Petitioner had not been relieved by the Road Construction Department till then. Hence, in the seniority list, published by the Road Construction Department on 15.09.2006, on the basis of the Resolution of the Personnel & Administrative Reforms Department dated 07.06.2002, he was shown as employee of the Department. However, as his services had finally been allocated to the State of Jharkhand, petitioner filed his representation on 06.10.2006 (Annexure-14) requesting for allocation of his services to the State of Bihar, on the basis of mutual transfer with one Manoj Kumar Marandi, 6 another Assistant Engineer (Mechanical) in the Department, whose services had been allocated to the State of Bihar. In the application for mutual transfer, petitioner mentioned that, due to change of his family conditions, it had become necessary for him to stay back in State of Bihar, as his father had become a heart patient and was being treated in Indira Gandhi Institute of Cardiology. Meanwhile, vide notification of the Road Construction Department dated 01.12.2006 (Annexure- 6), services of the petitioner and others were confirmed. Subsequently, the Road Construction Department, through a press communiqué dated 14.12.2006 (Annexure-17), invited applications, by 08.01.2007, for consideration of requests for mutual transfer on the same terms and conditions as was laid down in the said letter of the Department of Personnel & Administrative Reforms dated 21.05.2005. It was mentioned that Assistant Engineers (presently Executive Engineers), even if they had submitted their applications for transfer earlier, had to submit their applications afresh. It was also specifically mentioned that, in default of the same, or on the applications of the employees directly received in the Department of Personnel & Administrative Reforms, requests for mutual transfer shall not be considered. During this period, promotion of the petitioner and others as Executive 7 Engineers (Mechanical) was notified by notification dated 25.01.2007 (Annexure-7) in which petitioner was placed at serial no.6 and respondent no.6 was placed at serial no.8. It appears that petitioner had also applied for correction of his category, as his category was wrongly mentioned in the seniority list of the Assistant Engineers published on 27.08.2002. Hence, by corrigendum notification dated 13.03.2007 (Annexure-5) his category was corrected as “Scheduled Caste”. Subsequently after consideration of the objections received against provisional seniority list dated 15.09.2006, the Department notified a final seniority list of its officers of different cadre, through notification dated 04.06.2007 (Annexure-8), in which petitioner was placed at serial no.5 and respondent no.6 was placed at serial no.7 in the cadre of Executive Engineers (Mechanical). Finally, the applications of the petitioner and several others for mutual transfer were considered and, through notification of the Department of Personnel & Administrative Reforms dated 05.12.2007 (Annexure-9), his services were transferred to the State of Bihar, whereas services of the said Manoj Kumar Marandi was transferred to the State of Jharkhand. In the notification it was mentioned that, in the matter of mutual transfer, no travelling allowance will be admissible and no claim for restoration of seniority shall be entertained. 8 As a follow up, Notification dated 15.02.2008 (impugned Annexure-2) was issued by the Road Construction Department, by which services of the petitioner was returned in the Department in the State of Bihar on the condition that no claim for seniority shall be entertained. Later on, the Department of Personnel & Administrative Reforms also issued the said letter addressed to the Chief Secretary, State of Jharkhand, contained in Memo No. 277 dated 03.02.2009 (impugned Annexure-1) communicating, inter alia, that Government of Bihar had decided that in case of mutual transfer, the claim for seniority shall not be entertained and employees, transferred so, shall be placed at the bottom of the list of employees appointed/ promoted in that year. Respondent no.6, accordingly, filed a representation before the Secretary, Road construction Department on 28.10.2009 for publication/fixation of his seniority in terms of the said notification and communication of the Department as contained in Annexure-2. A copy of the said representation of respondent no.6 has been placed on record as Annexure-F with his said intervention application. The Road Construction Department, accordingly, published a seniority list by notification dated 09.12.2009 (Annexure-10) in which petitioner was shown at serial no.65 whereas respondent no.6 was shown at serial no.64 in the 9 list of appointed/promoted Assistant Engineers (Mechanical). Petitioner filed a representation against the same for correction of his seniority on 11.02.2010 (Annexure-15). The same having not been considered, petitioner has filed this writ application challenging the said Notification and letter of the Road Construction Department and Department of Personnel & Administrative Reforms, as contained in Annexures 2 and 1, respectively, on the basis of which he had been placed below the respondent no.6 in the seniority list and has prayed for restoration of his seniority. During the pendency of this writ application, final seniority list was published through Notification dated 12.01.2011 in which also petitioner was kept below the respondent no.6. Copy of the same is Annexure-H with supplementary counter affidavit of respondent no.6. Submissions of the learned counsel for the petitioner were precise and to the point. He submitted that petitioner had represented for mutual transfer through Annexure-14. It was filed with signatures of both the employees i.e. petitioner and the said Manoj Kumar Marandi. At that point of time, it was not known to the petitioner, nor it was made known or clarified by any notification, communication, letter etc., whatsoever, that persons opting for mutual transfer shall lose their seniority. He submitted that, the letter of the 10 Government of India dated 15.09.2004, which, for the first time, granted liberty to both the State Governments to entertain and consider applications of their employees for mutual transfer, granted liberty to the State Governments to lay down terms and conditions for the same. The subsequent letter of the Department of Personnel & Administrative Reforms dated 21.05.2005, addressed to the Chief Secretary of the State of Jharkhand, as contained in Annexure-16, although did spell out terms and conditions for consideration of the applications for mutual transfer, but did not stipulate at all that applicants shall not be entitled for their seniority in case their applications were accepted. The State of Jharkhand concurred to this proposal of the State of Bihar and accepted the said terms and conditions. Hence, when petitioner and the said Manoj Kumar Marandi came to know about this opportunity and its terms of conditions, they submitted their representations for mutual transfer. He submitted that even the Press Communiqué issued by the Road Construction Department on 14.12.2006, as contained in Annexure-17, also did not mention at all that applicants may lose their seniority if their applications for mutual transfer were allowed. He submitted that, upto this stage, it was neither decided nor notified in any manner that the applicants responding to the said Press Communiqué shall lose their seniority in the successor State, 11 in case their services were transferred from one State to another on account of request for their mutual transfer. It was only when their applications were allowed and a notification was issued by the Department of Personnel & Administrative Reforms on 05.12.2007, as contained in Annexure-9, by which petitioner‟s services were transferred back to the State of Bihar and services of the said Manoj Kumar Marandi was transferred to the State of Jharkhand, they came to know that they shall not be entitled for travelling allowance and their claim for seniority shall not be entertained. He submitted that this was an after-thought and condition imposed later to the terms and conditions laid down for such mutual transfer and accepted by the State of Jharkhand and much after a large number of applications had already been received by the Department of Personnel & Administrative Reforms, Government of Bihar for mutual transfer. He submitted that clearly this condition was not an agreed upon condition between the two Sates which is evident from the fact that the State of Jharkhand was informed about the decision of the State of Bihar to deny seniority to such employees only through letter dated 03.02.2009 as contained in Annexure-1. Learned counsel for the petitioner further submitted that allocation of services of employees between the State of Bihar and State of Jharkhand 12 are governed by Section 72 of the Bihar Reorganization Act, 2000. Proviso to Section 73 of the Act makes it clear that service conditions of the employees, upon their allocation to other State, in terms of Section 72, „shall not be varied to their disadvantage except with the previous approval of the Central Government‟. He submitted that condition with regard to denial of seniority was never placed before the Central Government for approval and the same was not laid down as a condition precedent at the time of offer being extended by the Bihar Government inviting applications for mutual transfer. Hence, seniority of the petitioner could not be altered by the State of Bihar on account of a decision taken by it later to submission of application by the petitioner and on condition not included in the first letter of the State Government dated 21.05.2005, addressed to the Chief Secretary of the State of Jharkhand, as contained in Annexure-16, and concurred by the State of Jharkhand. He submitted that identical situation arose in the State of Jharkhand and two such matters came for consideration before Jharkhand High Court. He referred to the copies of the two judgments of the Jharkhand High Court in the case of Rajendra Pratap Sinha Vs. State of Jharkhand [2009(2) JLJR 750] and in he case of Ravindra Pratap Singh Vs. State of Jharkhand [W.P.(S) No.1068 of 2008 - 1.7.2009], annexed as Annexures 11 and 12 with the 13 writ application, and submitted that Jharkhand High Court has already held that, since denial of seniority was not a condition precedent in the first letter of the Department of Personnel & Administrative Reforms dated 21.05.2005, seniority of such employees could not be adversely affected on the ground of its subsequent decision. He submitted that the Jharkhand High Court has noticed the provisions of Section 73 of the Bihar Reorganization Act, 2000 (hereinafter referred to as „the Act‟) to come to a conclusion that service conditions of the employees could not be altered to their disadvantage upon allocation of their services from one State to the other. He submitted that the judgment of the Jharkhand High Court has been implemented by the State of Jharkhand, vide notification dated 29.08.2009, as contained in Annexure-18. Hence, he submitted that seniority of the petitioner could not be altered by impugned Annexures 1 and 2 and he should be restored to the same position in the cadre where he was prior to allocation of his services to the State of Jharkhand. Respondent no.6 was allowed to be added as party in this case by order dated 05.04.2011 upon filing of intervention petition being I.A. No.7421 of 2010. He has also filed a counter affidavit. Learned senior counsel appearing on his behalf, in reply, submitted that since services of the petitioner was being transferred back to the State 14 of Bihar on his own request, he cannot be given his original seniority in the cadre, as it may adversely affect the seniority of others left out in the cadre after allocation of services of the petitioner to the State of Jharkhand. He submitted that, even if it was not included earlier in the terms and conditions, laid down by the Department of Personnel & Administrative Reforms through letter dated 21.05.2005 as contained in Annexure-16, the general principle in respect of denial of seniority, in case of choice or request transfer from one cadre to another, shall also apply in this case, notwithstanding the fact that this may be a case of transfer on request from a cadre of service under State of Jharkhand to a cadre of service under the State of Bihar. He submitted that this principle, applied in the State of Bihar since long to the cases of request transfer from one cadre to other, is inherent in such transaction and shall apply in cases of request transfer from the State of Jharkhand to the State of Bihar also. He submitted that once services of the petitioner was finally allocated to the State of Jharkhand, even if he was not relieved, provisions of Section 72 of the Act stood exhausted. Hence, his any subsequent transfer, on his own request, shall not be protected by proviso to Section 73 of the Act. He submitted that this distinction was neither argued before nor considered by the Jharkhand High Court in the said 15 two cases and it proceeded on general principle that in case of allocation of cadres from one State to the other, service condition of the employees shall not be adversely affected. He submitted that the Jharkhand High Court failed to appreciate that mutual transfer on request was not an allocation of cadre in terms of Section 72, rather it was normal transfer, with consent of parties and for their convenience, made permissible under certain terms and conditions. He further submitted that in fact petitioner did not fulfill the terms and conditions laid down in the said letter of the Department of Personnel & Administrative Reforms dated 21.05.2005 and also notified by the Road Construction Department through Press Communiqué dated 14.12.2006, as services of the petitioner was allocated to the State of Jharkhand on his own request. The said two documents clearly laid down that only those persons were eligible to apply for mutual transfer who either had not submitted their options or whose services had been allocated against their options. Since services of the petitioner, on his own choice, had been allocated to the State of Jharkhand, clearly petitioner did not fall in either of two categories. This Court has considered the submissions of learned counsels for the parties and has perused the records. So far availability of protection of proviso to Section 73 of the Act to the petitioner 16 is concerned, submission of learned senior counsel for respondent no.6 is correct. The protection of proviso to Section 73 of the Act is available to an employee only in the process of final allocation of his service from one State to the other. The said protection is available in matter of change of services of an employee from one State to the other by virtue of Section 72 and not otherwise. Admittedly, with issue of order by the Government of India, as contained in Annexure-G under sub-section (2) of Section 72 of the Act, services of the petitioner stood finally allocated to the State of Jharkhand. The protection of proviso to Section 73 was available to the petitioner only in that transaction of allocation of his services to the State of Jharkhand and his service conditions could not be altered, in any manner, to his detriment and, if he would have joined under the State of Jharkhand, pursuant to the said order, protection of the said proviso to Section 73 would have been available to him all the way. But provision for mutual transfer of two employees from one State to other, being of the same service, same cadre and the same pay scale etc., introduced by the Nodal Department, i.e. Department of Personnel & Administrative Reforms, State of Bihar, with certain terms and conditions, owing to the liberty granted by the Government of India in its letter dated 15.09.2004, and agreed upon by the State of 17 Jharkhand, was altogether a new opportunity to the employees who were all once employees of the State of Bihar. The protection flowing from proviso to Section 73 was not available to applicants availing this opportunity granted by the two States on the agreed terms and conditions. The Jharkhand High Court, in its judgment in the case of Rajendra Pratap Sinha (Supra), which was only followed in Ravindra Pratap Singh (Supra), as relied upon by learned counsel for the petitioner, has not delved upon this aspect of the matter in detail and has not appreciated true nature of the altogether new opportunity being made available by the State of Bihar and State of Jharkhand for its transferred employees for their mutual transfer, laying down terms and conditions of eligibility for availing the same. Learned counsel for the petitioner is technically correct that terms and conditions laid down by the Department of Personnel & Administrative Reforms, through its letter dated 21.05.2005, and notified by the Road Construction Department through its Press Communiqué dated 14.12.2006, did not clarify that such mutual transfer may cause loss of seniority. But to get advantage of this technical lapse committed by the respondents, petitioner had to establish that his application for mutual transfer with the said Manoj Kumar Marandi was strictly in accordance with law and in strict 18 compliance to the terms and conditions laid down in the said Press Communiqué issued by the Road Construction Department inviting applications. This Court finds that, amongst the terms and conditions laid down for entertaining claims for mutual transfer, one of the conditions was that the applicant should be one who either had not submitted his option or