IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.8257 of 2008 VINAY KUMAR SINGH Versus THE STATE OF BIHAR & ORS ----------- CWJC No.8314 of 2008 VINAY KUMAR Versus THE STATE OF BIHAR & ORS ----------- CWJC No.8274 of 2008 BALAJI ARINDAM Versus THE STATE OF BIHAR & ORS For the Petitioners: M/S Chittranjan Sinha, Anand Kumar Ojha For the State : Mr. Girijesh Kumar, J.C. to AAG III For State Advisory Committee : Mr. Ratan Kumar, CGC. Mr. Prashant Kashyap, CGC Mr. Sarvdev Singh, CGC ----------- 5. 31.07.2008 Heard learned counsel for the petitioners, the State Advisory Committee and the State of Bihar. The petitioners are aggrieved by the final allocation of their services to the State of Jharkhand, consequent to the reorganization of the State of Bihar. The issues are common in all the three writ applications except for an additional issue urged in CWJC No. 8257 of 2008 which this Court shall consider separately. Learned counsel for the petitioners submitted that they had exercised their option to remain in the State of Bihar. A tentative allocation list of cadre was prepared retaining them in the State of Bihar. This cadre allocation was done on the basis of tentative seniority list existing on the cut off date i.e. 15.11.2000. Subsequently, a final seniority list was prepared in - 2 - July, 2005, where the seniority position of the petitioners were altered to their prejudice resulting in their final allocation to the State of Jharkhand. That this final seniority list was the subject matter of challenge in a writ petition before this Court in which there were certain orders of status quo. In terms of Section 73 of the Bihar Reorganization Act (hereinafter called ‘the Reorganization Act’), the conditions of service applicable immediately before the appointed day while acting for the purpose of allocation of cadres under Section 72 of the Act could not be varied to the disadvantage of the Government servant except with the approval of the Central Government. Changing the seniority position of the petitioners in July, 2005 after the cut off date and allotting them the State of Jharkhand on that basis amounted to change their service conditions different from the appointed day, which was not permissible. In so far as CWJC No. 8257 of 2008 is concerned, the additional submission was that the petitioner having opted for the State of Bihar, his name figured in the list of persons allocated to the State of Bihar in the tentative list. There was no occasion for him to file any further objection against any tentative allocation. To treat him as a case of no option in the final allocation was an illegality. Counsel for the State Advisory Committee and the State of Bihar supported the final allocation done in 2008 to submit that it was in accordance with the policy guidelines. No issue with regard to any other violation of the policy guidelines had been urged by the petitioners. Mere option did not create a legal right. The reorganization of the State and the consequent allocation of services of the employees of the erstwhile State of Bihar to the two new - 3 - States was a giant exercise of historical proportions which has now fructified eight years later in the year 2008. The arduous nature of the task is evident from the time taken itself. As settled by the Supreme Court in the case of Indra Deo Paswan v. The Union of India & ors, reported in (2007) 7 SCC 250, mere exercise of an option, which does not create a legal right, shall not per se furnish a cause of action against allocation of service unless there be gross illegality or what is termed as wednesbury unreasonableness malafides. Individual heart burning was not a sufficient ground to interfere unless a clear case of illegality was made out. Section 72 of the Bihar Reorganization Act talks of final allocation and not tentative. Section 73 says that at the time of such final allocation the conditions of service as existing on the appointed day shall not be varied to the disadvantage of the Government servant. This presupposes the pre- existence of final conditions of service as distinct from tentative/temporary conditions on the appointed day. If the conditions of service sought to be relied upon on the appointed day is itself nebulous of temporary nature awaiting to fructify matters shall be different. On the own showing of the petitioners the earlier seniority list as existing on 15.11.2000 was tentative in nature. The allocation done on that basis was tentative. The word tentative itself visualizes a temporary status awaiting to fructify. The fructification took place when the seniority list was finalized. Nothing new happened. This finalized seniority list for the very reason that the earlier seniority list was tentative shall be deemed to be the conditions of service visualized under Section 73 of the Bihar Reorganization Act. That final seniority list may be sub judice in a writ petition is an - 4 - entirely a different matter. The use of such seniority list for the purpose of allocation of cadre, which naturally requires a yardstick, shall not in any way affect the final seniority position that may emerge in the litigation. It is not the case of the petitioners that consequent to the allocation of their services to the State of Jharkhand contrary to their option, their status and/or salary or promotion prospects were going to be affected. No further grounds have been urged to demonstrate any violation of the guidelines laid down for the allocation of cadre. The additional ground urged in CWJC No. 8257 of 2008 does not also appeal to this court because in any event the very exercise of option would not vest a right to the petitioner to claim that he may be treated in accordance with the option. That he did not submit a fresh option is, therefore, of no avail to him in view of the final seniority list. Reliance was then placed on an interim order of this Court dated 24.6.2007 in CWJC No. 5732 of 2006 by which it was urged that the order of allocation had been stayed. The interim order is at Annexure-8 in CWJC No. 8314 of 2008. This Court finds it difficult to invoke principles of consistency urged on behalf of the petitioners. The interim order does not contain albeit any brief discussion so as to persuade this Court on principles of consistency only, for reasons as discussed presently in this order. In the entirety of the matter, this Court finds no merit in these writ applications. The same are, accordingly, dismissed. AKS/ (Navin Sinha,J.)