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2013 DIGILAW 779 (PAT)

Kauleshwar Chaudhary v. Union of India

2013-07-09

JAYANANDAN SINGH

body2013
ORDER In this writ application, petitioner has made the following prayer :– “That by this application, the petitioner is invoking the writ jurisdiction of this Hon’ble Court in the nature of writ of mandamus for directing the respondents to transfer the services of the petitioner from Jharkhand to Bihar since the cadre distribution of Assistant Engineer under Scheduled Caste category in between Bihar and Jharkhand, the number of Assistant Engineer under Scheduled Caste has been exceeded to 6%, which changed the service condition of the petitioner resulting disadvantage in promotion, which is nothing but is direct violation of proviso of Section 73 of Bihar Reorganization Act, 2000 and violative to the guidelines issued under letter No. 27/26/2006-SR(S) dated 24.6.2010 by the Deputy Secretary to Govt. of India, Ministry of Personnel, P.G. & Pension (Department of Personnel & Training) Government of India.” 2. Petitioner has filed I. A. No. 4497 of 2013 for liberty to him to amend the prayer in the writ application and grant him liberty to challenge the communication of the Ministry of Personnel, Public Grievances and pension, Government of India dated 10.1.2013. 3. Impugned communication of the Ministry shows that at the time of allocation of cadre, on petitioner’s own option, his services were transferred and placed under the State of Jharkhand, which is not being denied by the petitioner also. Learned counsel for the petitioner has failed to point out any provisions in the Bihar Reorganization Act, 2000 to show that after allocation of cadre is complete, any employee of one Government has any right to seek transfer to other Government. The said prayer of the petitioner made in the I.A. is therefore rejected. 4. However, grievance of the petitioner is different. His grievance is that he was appointed under Scheduled Caste category. Before bifurcation, 16% reservation was provided for Scheduled Caste category in the State of Bihar. Hence, he was included in the 16% quota of Scheduled Caste in the service. Allocation was also made to the Jharkhand State on the basis of this reservation percentage under which petitioner also opted and was transferred to Jharkhand State. Grievance is that now Jharkhand Government has reduced the percentage of Scheduled Caste from 16% to 10%. Because of this reduction in percentage, petitioner is affected as he is now beyond 10% quota in his cadre. Grievance is that now Jharkhand Government has reduced the percentage of Scheduled Caste from 16% to 10%. Because of this reduction in percentage, petitioner is affected as he is now beyond 10% quota in his cadre. Thus, he has been thrown out of reservation quota and has been placed in the general category. 5. Learned counsel for the petitioner submits that in terms of proviso to sub-section (1) of Section 73 of the Act, service conditions of the petitioner, which he was enjoying at the time of allocation of his service to Jharkhand State, cannot be altered to his disadvantage. Hence, even on the basis of reduction of percentage of Scheduled Caste quota in the Jharkhand State, petitioner cannot be thrown out of reservation category and cannot be put in general category. 6. What right had accrued to the petitioner on the basis of said proviso to sub-section (1) of Section 73 of the Bihar Reorganization Act, 2000 is not a subject matter in this case. Moreover, if the petitioner is aggrieved by change of his service conditions to his disadvantage by the Government of Jharkhand on account of reduction in percentage of Scheduled Caste quota in the cadre, he is required to agitate this issue before the Jharkhand High Court and not before this Court. Only on account of being put to disadvantage because of reduction in percentage of Scheduled Caste quota in the category, petitioner cannot claim a right of his transfer back to the Bihar State. Hence, so far as prayer made in the writ application, as quoted above, is concerned, the same is rejected. 7. However, this will not prejudice the right of the petitioner to move the Jharkhand High Court putting a claim that his service condition, as was prevailing at the time he was transferred to the Jharkhand State, cannot be changed.