ORDER
Narendra Nath Tiwari, J.
1. In this writ petition the petitioner has prayed for quashing part of the Memo No. 1714 dated 28.12.2007 (Annexure-9) so far as the same relates to the petitioner whereby the petitioner has been transferred from the post of Incharge, Superintendent of Excise. Dumka-cum-Lohardaga-cum-Simdega. The petitioner has also prayed for quashing the notification as contained in Memo No. 1716 dated 29.12.2007 (Annexure-9/1) whereby the respondent No. 4 has been transferred at the place of the petitioner.
2. The petitioner was selected in 40th Combined Competitive Examination con ducted by the Bihar Public Service Commission and was posted as Inspector. Excise in the Department of Excise and Prohibition, Government of Bihar in the year 1997. The petitioner was given promotion to the post of Excise Superintendent by Notification No. 4251 dated 5.12.2005 in the pay scale of Rs. 6500-200-10500. He was posted as Excise Superintendent, Munger-cum-Lak-hisarai-cum-Jamui-cum-Shekhpura.
3. The State of Jharkhand was created by virtue of the provisions of the Bihar Reorganization Act, 2000. There was cadre bifurcation in all the departments of the Government. The petitioner was given Jharkhand Cadre. A notification to that effect was issued by the Commissioner-cum-Secretary, Excise and Prohibition Department, Government of Bihar by Memo No. 1331 dated 10.4.2006 whereby the officers/employees of the said department, who were allocated Jharkhand Cadre, were relieved. The petitioner's name stands at Sl. No. 5 in the said letter dated 10.4.2006 clearly showing his post as Superintendent Excise.
4. After allocation of cadre, the petitioner joined the department in the State of Jharkhand. The State of Jharkhand accepted the joining of the petitioner and others by Memo No. 1057 dated 8.8.2006 clearly mentioning that his pay scale shall be maintained and he will get his pay according to the Last Pay Certificate issued by the State of Bihar. However, instead of giving a regular post to the petitioner, he was posted as In-charge, Superintendent. Excise, Dumka-cum-Godda-cum-Jamtara.
5. It is relevant to mention here that the Last Pay Certificate of the petitioner was received by the State of Jharkhand in which his post has been clearly mentioned as Excise Superintendent with the pay scale of Excise Superintendent.
6. In view of the posting of the petitioner as In-charge, Superintendent, a clarification was sought from the Finance Department. State of Jharkhand by Memo No. 4075 dated 13.12.2007 (Annexure-8) regarding his pay scale. The Finance Department issued the petitioner's pay slip according to the Last Pay Certificate issued by the Government of Bihar i.e. the pay scale of Excise Superintendent. According to the petitioner, though he was posted as In-charge, Superintendent of Excise, his posting as such was for the transitional period and the Government had to take decision shortly for his regular posting. The petitioner had not objected to the designation of In-charge, Excise Superintendent only on the basis of the said assurance of the Government.
7. The controversy giving rise to this writ petition arose when the petitioner was sought to be transferred from the present post of In-charge Excise Superintendent, Dumka-cum-Godda-cum-Jamtara to the post of Excise Inspector, Gumla-cum-Lohardaga-cum-Simdega by virtue of the transfer order being Memo No. 1714 dated 28.12.2007 (Annexure-9). The petitioner contended that he has been deliberately transferred from that post to accommodate one Uma Shankar Singh, Excise Inspector (respondent No. 4).The said Uma Shankar Singh has been transferred to Dumka-cum-Godda-cum-Jamtara as Excise Inspector by Memo No. 1716 dated 29.12.2007 (Annexure-9/1) and he has also been made the In-charge Superintendent of Dumka-cum-Godda-cum-Jamtara. According to the petitioner, the said order of transfer is violative of Sections 72 and 73 of the Bihar Reorganization Act which do not permit posting of an employee on a lower post. The petitioner once holding the post of Excise Superintendent cannot be transferred on a lower post of Excise Inspector. Such posting amounts to change of the petitioner's service condition which is prohibited under the provisions of Section 73 of the Bihar Reorganization Act. The respondents had assured that regular promotion to the post of Excise Superintendent along with other persons shall be considered shortly, but in the meantime he has been sought to be disturbed by the impugned order. The said order is wholly arbitrary, illegal and without jurisdiction.
8. The State-respondent as well as the private respondent contested the petitioner's writ petition. In the counter affidavit the State has taken the stand that the petitioner has been still holding the substantive post of Excise Inspector. The petitioner was given ad hoc promotion in the rank of Superintendent of Excise by the then State of Bihar, subject to the adjustment after allocation of cadre to the respective State. The petitioner was allocated Jharkhand Cadre and his services were transferred to the State of Jharkhand. A final gradation list of the Excise Inspectors has been published by Letter No. 1612 dated 11.12.2007 in which the name of the petitioner stands at SI. No. 29. The provisional order of the petitioner's promotion did not confer any right to the petitioner for his posting as Excise Superintendent. The circular issued by the Government of India being Circular No. 2810/2000 SR(S) dated 22.2.2001 does not support the petitioner's claim. The order of promotion issued by the State of Bihar is not binding on the State of Jharkhand. In this State, the promotion to the post of Excise Superintendent is to be given in accordance with the vacancies available in this State taking into consideration the reservation policy. The respondents-State has yet to examine all those aspects and the same is still in process. No right, thus, accrued to the petitioner and the writ petition is liable to be dismissed.
9. The respondent No. 4 in his counter affidavit has made almost the same contentions and has additionally stated that he has already given his joining at the transferred place as Excise Inspector and has also taken the additional charge of the Superintendent, Excise, Dumka-cum-Godda-cum-Jamtara. He has been also authorized to exercise the power of Drawing and Disbursing Officer. It has been stated that the transfer is an incidence of service and the petitioner has no right to challenge the said transfer.
10. Learned Counsel for the parties advanced their arguments supporting their respective stands. Mr. A.K. Sinha, learned senior counsel appearing on behalf of the petitioner, referred to and relied on the various decisions of the Supreme Court such as T.R. Kapur and Ors. v. State of Haryana and Ors. : (1987)IILLJ25SC , P.K. Chinnasamy v. Government of Tamil Nadu and Ors. : (1988)IILLJ181SC and a decision of this Court in Sukhdeo Oraon and Ors. v. State of Jharkhand and Ors. WP(S) No. 3216/2005.
11. Almost in similar circumstances, after bifurcation of the Punjab and Haryana by virtue of the Punjab Reorganization Act, 1966. the Supreme Court held in T.R. Kapur, (supra), that the service condition of an employee cannot be altered by the State allocated to the petitioner after bifurcation. In P.K. Chinnasamy case (supra), the Supreme Court has held that the public servant should be given his posting and work commensurating with his status. In Sukhdeo Oraon case (supra), this Court while considering a case, though in the context of a Deputy Superintendent of Police, has held that in view of the provisions of Sections 72 and 73 of the Bihar Reorganization Act, service condition of an employee after allocation of cadre to any State cannot be altered to his disadvantage except with the previous approval of the Central Government. In that case it was held that the persons who were allocated the cadre of Jharkhand and were relieved as the Deputy Superintendent of Police by the State of Bihar, they cannot be treated as Inspector of Police and deny their promotion given by the State of Bihar as the same is in the teeth of the provisions of Sections 72 and 73 of the Bihar Reorganization Act. Section 72 of the Bihar Reorganization Act runs as follows:
72. Provisions relating to services in Bihar and Jharkhand.--(1) 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.
Provided that no direction shall be issued under this section after the expiry of a period of one year from the appointed day.
(2) As soon as may be after the appointed day, the Central Government shall, 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 for be deemed to have taken effect.
(3) Every person, who is finally allotted under the provisions of Sub-section (2) to a successor State shall, if he is not already serving therein be made available or serving in the successor State from such date as may be agreed upon between the Government concerned or in default of such agreement as may be determined by the Central Government.
12. Section 73 of the Bihar Reorganization Act deals with other provisions relating to the services as thus:
73. Other provisions relating to services.--(1) Nothing in Section 72 shall be deemed to affect on or after the appointed day the operation of the provisions of Chapter I of Part XIV of the Constitution in relation to determination of the conditions of service of persons serving in connection with the affairs of the Union or any State:
Provided that the conditions of service applicable immediately before the appointed day in the case of any person deemed to have been allocated to the State of Bihar or to the State of Jharkhand under Section 72 shall not be varied to his disadvantage except with the previous approval of the Central Government.
(2) All services prior to the appointed day rendered by a person-
(a) if he is deemed to have been allocated to any State under Section 72, shall be deemed to have been rendered in connection with the affairs of that State:
(b) if he is deemed to have been allocated to the Union in connection with the administration of the Jharkhand shall be deemed to have been rendered in connection with the affairs of the Union, for the purposes of the rules regulating his conditions of service.
(3) The provisions of Section 72, shall not apply in' relation to members of any All India Service.
13. It is clear from the said provisions of the Bihar Reorganization Act that after allocation of cadre under the provisions of the Bihar Reorganization Act, the service conditions of an employee is protected and the same cannot be altered/varied to his disadvantage by the newly allocated State except with previous approval of the Central Government. The petitioner, who has been allocated the Jharkhand cadre, was relieved from the State of Bihar as Excise Superintendent with regular payscale of that post. The State of Jharkhand accepted the same. His scale of pay has been maintained by the Finance Department though he was posted as the In-charge Superintendent on joining the State of Jharkhand. According to the petitioner he was assured that it was temporary arrangement and the regular posting will be made soon after the decision is taken by the department which is in the process.
14. It is strange that though the petitioner is being given the pay scale of Excise Superintendent, he is being posted as Excise Inspector by the impugned order. The said posting of the petitioner is not according to his status. He was relieved from the State of Bihar as Excise Superintendent with regular pay scale of that post. The State of Jharkhand has not altered his payscale of Excise Superintendent. His posting at a lower post of Excise Inspector is wholly arbitrary and illegal.
15. In view of the above discussions. I do not find any justification in issuing the impugned transfer order of the petitioner posting him as Excise Inspector (Annexure-9), The impugned order of the petitioner's transfer as contained in Annexure-9, is thus, hereby quashed. He order to the extent of giving additional charge of the Excise Superintendent to the respondent No. 4 is also quashed.
16. This writ petition is allowed. The petitioner is held entitled to get the salary for the intervening period without any break.