Employees opting for mutual transfer would lose their seniority, and the protection under Section 73 of the Bihar Reorganization Act 2000 was not available to them.

AJAY KUMAR TRIPATHI, J.

1. A bunch of writ applications came to be filed by a set of employees, who came to be affected by one way or the other by mutual cadre transfer between the State of Bihar and the State of Jharkhand or vice versa. The reason for filing of some writ applications by a set of such employees are because they were being made to lose their seniority because they opted for a mutual transfer worked out by them. There are other writ applications wherein persons after mutual transfer were supposed to lose their seniority and placed at the bottom of ladder of the gradation list but they are insistent upon claiming original seniority and the position as it stood before the mutual transfer request was accepted and acted upon by the two States.

2. The Court puts it for record that State of Bihar was bifurcated and State of Jharkhand was created on 15th of November, 2000. The Central Government enacted a legislation known as the Bihar Reorganization Act 2000 and this Act was supposed to take care of various aspects arising out of bifurcation of the State of Bihar. So far as the cadre strength of the two States is concerned, it was decided that 2/3rd of the strength of the undivided Bihar will remain in the State of Bihar and 1/3rd of the strength of the employees will go to the State of Jharkhand.

3. After the bifurcation, decisions were taken by the competent authority and allocation of cadre was made. The Court will not go into the modality, which was worked out for allocation of such cadres. When the exercise of allocation of cadre started, problems faced by diverse kind of employees surfaced. Representations of all kinds started pouring in. It is obvious that such large scale change of cadres will have elements, which affected human beings in one way or the other. Deliberations were done and the Central Government came to a considered opinion that certain cadre transfers could also be done or entertained on the basis of mutual transfer worked out by employees amongst themselves. Some of the early circulars laid down the basics of requirements, which were required to be fulfilled before such request for mutual transfer could be entertained. It is made clear that some of the notifications which form part and parcel of the pleadings of the two writ applications are not stand alone circulars and decisions since deliberations was an ongoing process. Clarifications came to be issued from time to time depending upon the kind of problems, which were thrown up in implementation and enforcement of request for mutual transfers and cadre transfer. But we are concerned with mutual transfer cases only.

4. There is no dispute that when the initial policy of mutual transfer came into place, quite a few employees opted for it. There is again no dispute that when these options were exercised, there was no clarity on the position as to what their seniority position would be, if the request for change of cadres between two States were accepted and implemented. The mutual transfer policy remained in vogue. Employees availed the benefits but clash of interest with regard to seniority started soon thereafter. One set of persons insisted that they will not lose their position of seniority. They also pleaded that the same benefit and protection, which other employees had been extended on cadre transfer without their consent or without any option exercised for mutual transfer, be made applicable across the board.

5. Litigations started in the State of Bihar as well as in the State of Jharkhand. This Court has the benefit now of a decision rendered by a Division Bench of Jharkhand High Court in an appeal filed by State of Bihar against a learned Single Judge's decision, which was the case of Rajendra Pratap Sinha vs. State of Jharkhand and Others. The Division Bench decision has been brought on record by the petitioner of CWJC No. 20968 of 2011 as Annexure 1 in I.A. No. 4100 of 2015.

6. The Division Bench after hearing the parties