PANKAJ KUMAR versus STATE OF JHARKHAND & ORS.

[2021] 8 S.C.R. 537

PANKAJ KUMAR

STATE OF JHARKHAND & ORS.

(Civil Appeal No(s). 4864 of 2021)

AUGUST 19, 2021

[UDAY UMESH LALIT AND AJAY RASTOGI, JJ.]

Bihar Reorganisation Act, 2000: ss. 72, 73 and 74 – Provisionsrelating to services in Bihar and Jharkhand – Benefit of reservation– Entitlement to – Person resident of the State of Bihar – Order of1950, identifying castes/tribes whereby benefit extended to membersof SC/ST throughout the integrated State of Bihar – SubsequentlyState of Bihar bifurcated into two successor States, State of Biharand State of Jharkhand with rights and privileges to the extent beingprotected by 2000 Act – Said persons, if could still be considered tobe migrant to the successor State of Jharkhand depriving them oftheir privileges and benefits of reservation for public employmentto which the incumbent or their lineal descendants has availed inthe integrated State of Bihar – Held: Person is entitled to claimbenefit of reservation in either of the successor State of Bihar orState of Jharkhand, but will not be entitled to claim priveleges andbenefit of reservation simultaneously in both the successor Statessince that would defeat the mandate of Arts 341(1) and 342(1) –Those who are members of the reserved category and are residentof the successor State of Bihar, while participating in open selectionin State of Jharkhand would be treated to be migrants and it wouldbe open to participate in general category without claiming thebenefit of reservation and vice-versa – s. 73 postulates not only toprotect the existing service conditions but the benefit of reservationand privileges which he was enjoying on or before the appointedday, in the State of Bihar not to be varied to his disadvantage afterhe became member of service in the State of Jharkhand – In viewthereof, it would be highly unfair and pernicious to their interest ifthe benefits of reservation with privileges and benefits flowingthereof are not being protected in the State of Jharkhand after theincumbent is absorbed – Employees who were in public employmentin the State of Bihar on or before the appointed day, apart fromthose who are domicile of either of the district which became part of

CDEFGH537

538SUPREME COURT REPORTS

Athe State of Jharkhand, such of the employees who have submittedtheir option to serve the State of Jharkhand, their existing serviceconditions shall not be varied to their disadvantage and standsprotected by virtue of s. 73 – Such of the employees who are membersof the SC/ST/OBC whose caste/tribe has been notified, benefit ofreservation including privileges and benefits flowing thereof, wouldBbe protected by virtue of s. 73 for all practical purposes which canbe claimed (including by their wards) for participation in publicemployment – Constitution (Scheduled Castes)/(Scheduled Tribes)Order 1950.

Disposing of the appeals, the CourtC

HELD: 1.1 By introducing the Bihar Re-organisation Act,2000, so far as the conditions of service of the serving employeesis concerned, are indeed being protected by virtue of Section 73read with Section 74 under Part VIII of the Act 2000 which clearlyprovides that such of the employees who were appointedDimmediately before the appointed date holding or dischargingduties of any post or office in connection with the affairs of theexisting State of Bihar in any area now falling in the successorState of Jharkhand shall continue to hold the same post or officein the successor State provided option has been exercised toEremain in the State of Bihar, they shall be deemed to be dulyappointed to the post or office of the successor State. As aconsequence, such of the employees who are workingimmediately on or before the appointed date, i.e. 15th November,2000 in those 18 districts which have been formed part of theState of Jharkhand in terms of Section 3 of the Act be deemed toFbe appointed in the respective successor State of Jharkhand, withtheir service conditions not to be varied to his disadvantageexcept with the previsous approval of the Central Government.[Para 48][564-B-E]

1.2 The scheme of the Act 2000 postulates that employeesGwho are working immediately on or before the appointed date, inthe State of Bihar, has either domicile of the districts that formedpart of State of Jharkhand under Section 3 of the Act or opted orjoined being junior in their respective seniority, stands absorbedin the successor State of Jharkhand and by virtue of statutoryHinstrument, their service conditions stand protected and became

entitled to claim privileges and benefits to which the membersof scheduled castes/scheduled tribes/OBC are entitled for interms of the Presidential Order 1950, Constitution (ScheduledCastes)/(Scheduled Tribes) Order 1950 as amended from time totime. [Para 49][565-F-G]

1.3 There is fundamental dichotomy in the submissionsmade by the counsel for the State of Jharkhand that the existingservice conditions including benefit of reservation in thepromotional cadre post shall not be varied to his disadvantagebut he shall be considered to be migrant to the State of Jharkhandwhile participating in public employment to compete in open/general category and asked to seek the benefit of reservation inthe neighbouring State of Bihar, to hold different status in hisparent State of Jharkhand after he became member of serviceof the State of Jharkhand, serving for sufficient long time on andafter the appointed day, i.e. 15th November, 2000 in the State isunsustainable in law and in contravention to the scheme of theAct 2000. [Para 52][567-D-E]

1.4 It will be highly unfair and pernicious to their interest ifthe benefits of reservation with privileges and benefits flowingthereof are not being protected in the State of Jharkhand afterhe is absorbed by virtue to Section 73 of the Act 2000 that clearlypostulates not only to protect the existing service conditions butthe benefit of reservation and privileges which he was enjoyingon or before the appointed day, i.e. 15th November, 2000 in theState of Bihar not to be varied to his disadvantage after he becamea member of service in the State of Jharkhand. [Para 53][567-F-G]

1.5 The collective readings of the provisions of the Act,2000 makes it apparent that such of the persons whose place oforigin/domicile on or before the appointed day was of the Stateof Bihar now falling within the districts/regions which form asuccessor State, i.e. State of Jharkhand under Section 3 of theAct, 2000 became ordinary resident of the State of Jharkhand, atthe same time, so far as the employees who were in publicemployment in the State of Bihar on or before the appointed day,i.e. 15th November, 2000 under the Act 2000, apart from thosewho are domicile of either of the district which became part of the

AState of Jharkhand, such of the employees who have submittedtheir option or employees who are junior in the cadre of theirseniority as per the policy of the Government of India of which areference has been made, either voluntarily or involuntarily callupon to serve the State of Jharkhand, their existing serviceconditions shall not be varied to their disadvantage and standsBprotected by virtue of Section 73 of the Act, 2000. [Para 54][568-A-D]

1.6 Such of the employees who are members of the SC/ST/OBC whose caste/tribe has been notified by an amendmentto the Constitution(Scheduled Castes)/(Scheduled Tribes) OrderC1950 under Vth and VIth Schedule to Sections 23 and 24 of theAct 2000 or by the separate notification for members of otherbackward class category, benefit of reservation includingprivileges and benefits flowing thereof, shall remain protectedby virtue of Section 73 of the Act 2000 for all practical purposes

Dwhich can be claimed (including by their wards) for participationin public employment. [Para 55][568-D-E]

1.7 It is made clear that person is entitled to claim benefitof reservation in either of the successor State of Bihar or State ofJharkhand, but will not be entitled to claim the privileges andEbenefits of reservation simultaneously in both the successor Statesand if that is permitted, it would defeat the mandate of Articles341(1) and 342(1) of the Constitution and those who are membersof the reserved category and are resident of the successor Stateof Bihar, while participating in open selection in State of Jharkhandshall be treated to be migrants and it will be open to participateFin general category without claiming the benefit of reservationand vice-versa. [Para 56][568-E-F]

1.8 The appellant in Civil Appeal @ SLP(Civil) No.13473of 2020, being serving employee in the State of Jharkhand byvirtue of Section 73 of the Act 2000, would be entitled to claimGthe benefit of reservation including the privileges and benefitsadmissible to the members of Scheduled Caste category in theState of Jharkhand for all practical purposes including participationin open competition seeking public employment. [Para 57][568-G-H; 569-B]

1.9 As regards appellants in Civil Appeals @ SLP (Civil)Nos. 3610-3615 of 2021 is concerned, there is no material placedby either of them on record to justify that how long they wereresiding in the districts which now form part of the successorState of Jharkhand and the advertisement of the year 2004required that one has to submit caste certificate issued by thecompetent authority of the State of Jharkhand and none of themproduced the caste certificate. The present batch of appellantswere appointed in the year 2005 as Constables against the postreserved for Scheduled Caste/Scheduled Tribe/OBC category inthe State of Jharkhand, were migrants to the State of Jharkhandwhich would disentitle them in claiming the benefit of reservation.However, in view of the peculiar facts and circumstances of thecase which, however, cannot be ignored, that the appellants hadbonafidely submitted their application pursuant to anadvertisement dated 13th January, 2004 issued by the State ofJharkhand holding selection for the post of Constable and it isnot the case of the respondents that either of the appellant hasmisrepresented while participating in the selection process orthe caste/tribe/OBC to which either of the appellant belongs isnot being notified in the Constitution(Scheduled Castes)/(Scheduled Tribes) Order, 1950 which has been amended inreference to Sections 23 and 24 of the Act 2000 or the class ofOBC which has been notified by the State of Jharkhand and oncethe appellants are appointed, after going through the process ofselection served for 3- 4 years, their services came to beterminated in June, 2008 and who were never at fault have lostalmost 13 years in litigation and could not secure employment ata later stage. Taking note of the peculiar facts and circumstancesand the period of service rendered, while exercising our plenarypower under Article 142 of the Constitution, to do completejustice, each of the appellant deserves indulgence of reinstatementin service on notional fixation of pay and allowances, etc. [Paras58, 59][569-A-C, D-G]

1.10 The majority judgment of the High Court isunsustainable and is set aside. The minority judgment on principleis not concurred with. [Para 60][569-G-H; 570-A]

A1.11 The appellant in Civil Appeal @ SLP(Civil) No. 13473of 2020 would be appointed pursuant to his selection in referenceto advertisement no. 11 of 2007 and he is entitled for his seniorityas per his placement in the order of merit with notional fixationof pay & allowances and in Civil Appeals @ SLP(Civil) Nos. 3610-3615 of 2021, the order of termination of each of the appellant isBquashed and set aside and the appellants would be reinstated inservice with notional pay & allowances and would not be entitledfor arrears of salary upto the date of appointment/reinstatement.[Para 61][570-B-D]

Marri Chandra Shekhar Rao v. Dean, Seth G.S.CMedical College and Others (1990) 3 SCC 130 : [1990]2 SCR 843; State of Maharashtra and Anr. v. Union ofIndia and Another (1994) 5 SCC 244 : [1994] 1 Suppl.SCR 714; Bir Singh v. Delhi Jal Board and Others (2018)10 SCC 312 : [2018] 10 SCR 513; Sudhakar VithalDKumbhare v. State of Maharashtra and Others (2004)9 SCC 481 : [2003] 5 Suppl. SCR 746; Sau Kusum v.State of Maharashtra and Others (2009) 2 SCC 109 :[2008] 17 SCR 675; M.C.D. v. Veena and Others (2001)6 SCC 571 : [2001] 1 Suppl. SCR 493; Kumari MadhuriPatil and Another v. Addl. Commissioner, TribalEDevelopment and Others (1994) 6 SCC 241 : [1994] 3Suppl. SCR 50 – referred to.

CaseLawReference

CIVIL APPELLATE JURISDICTION: Civil Appeal No.4864 of2021.

From the Judgment and Order dated 24.02.2020 of the High Courtof Jharkhand at Ranchi in LPA No.80 of 2018.

With

Civil Appeal Nos.4865-4870 of 2021

K.K. Venugopal, AG, Tushar Mehta, SG, Arunabh Choudhary,AAG, Akshay Amritanshu, Saurabh Mishra, Kanu Agarwal, Ms. SuhasiniSen, Arvind Kumar Sharma, Ms. Pragya Baghel, Ms. Tulika Mukherjee,Zain Khan, Shwetank Singh, Ms. Aastha Shreshtha, Himanshu Shekhar,Jamnesh Kumar, Amit Pawan, Anand Nandan, Sumeet Gadodia, KaushikPoddar, Advs. for the appearing parties.

The Judgment of the Court was delivered by

RASTOGI, J.

1. Leave granted.

2. The instant batch of appeals have been preferred assailing thejudgment and Order passed by the High court of Jharkhand dated24[th]February, 2020 by three Judges with majority of 2:1.

3. The brief narration of facts for proper appreciation of thecontroversy relevant for the purpose are as under.

4. In Civil Appeal @ SLP(Civil) No. 13473 of 2020, the appellant’sfather originally belonged to District Patna in the State of Bihar but asalleged, the appellant was born on 27th November, 1974 in Hazaribaghwhere his father was residing which earlier was part of the unified Stateof Bihar but after the Bihar Reorganisation Act, 2000(hereinafter beingreferred to as “Act, 2000”) came into force from the appointed day, i.e.15[th] November 2000, District Hazaribagh became part of the successorState of Jharkhand.

5. It was the specific case pleaded by him that he was born &brought up and took his education within the territory which is now in theState of Jharkhand. He belongs to Scheduled Caste category and acertificate was issued by the competent authority in the State ofJharkhand. He was appointed on the post of Assistant Teacher on 21[st]December, 1999 and posted in school in Ranchi, the capital of Jharkhand

Aagainst the post reserved for SC category and pursuant to the cadrerevision on bifurcation of the States, he opted the State of Jharkhand.While serving as teacher, to go forward and to fulfil his ambitions, heappeared as member of SC category in the third Combined Civil Servicesexamination, 2008 pursuant to an advertisement no. 11 of 2007 publishedby the State of Jharkhand.B

6. He cleared the preliminary, as well as main examination followedwith an interview and the final result was published in the year 2010 andhis name appeared at Sl. No. 5 against 17 vacancies reserved forScheduled Caste category. But when his appointment order was withheldand persons lower in order of merit in the Scheduled Caste categoryCwere appointed on 11[th] August, 2010, receiving no response from theState authorities of his ignorance from being considered for appointmentdespite being placed in the order of merit, he knocked the doors of theHigh Court by filing writ petition under Article 226 of the Constitution.

7. In the counter affidavit filed by the State of Jharkhand, it wasDadmitted that the appellant is the member of Scheduled Caste and hasbeen duly selected in the Scheduled Caste category, but their defencewas that his service book indicates that he is permanent resident ofDistrict Patna in the State of Bihar is to be treated as migrant to theState of Jharkhand. In consequence, he was not eligible for appointmentEin Scheduled Caste category pursuant to his participation in the selectionprocess held in the Combined Civil Services Examination, 2008.

8. Learned Single Judge of the High Court by judgment dated13[th] October, 2017 allowed the writ petition with direction to therespondent State to issue the letter of appointment in his favour, whichFwas challenged by State in the Letters Patent Appeal and came to beallowed by the impugned judgment with the majority of 2:1.

9. The other batch of appeals in Civil Appeals @ SLP(Civil) No(s).3610-3615 of 2021 are preferred by the appellants as alleged who wereresiding in the State of Jharkhand on the appointed day, i.e. 15[th] November,G2000 and after going through the process of selection held pursuant toan advertisement dated 13[th] January, 2004, were appointed as Constablesagainst the post reserved for Scheduled Caste/Scheduled Tribe/OBCcategory in the State of Jharkhand and after they had served for aboutthree years, their services were terminated on the premise, that they arepermanent residents of the State of Bihar and had produced the casteH

certificate issued by the authority of the State of Bihar, hence could notbe entitled to claim benefit of reservation of SC/ST/OBC in the successorState of Jharkhand, by an Order dated 16[th] June, 2008.

10. The order of termination came to be challenged by filing writpetition under Article 226 of the Constitution which was dismissed bythe learned Single Judge of the High Court by judgment dated30[th] January, 2015. Aggrieved by the order of learned Single Judge,appellants preferred LPA that came to be clubbed along with the LPApreferred by the appellant Pankaj Kumar and all the analogous matterswere heard and dismissed by the impugned judgment which is subjectmatter of challenge in the instant batch of appeals.

11. Learned counsel for the appellants submits that it is an anundisputed fact that in the unified State of Bihar, all the appellants sufferedthe degree and element of disadvantages and social hardships whichconstitute the input for inclusion of their caste/tribe in the category ofScheduled Caste/Scheduled Tribe reflected from the Constitution(Scheduled Castes)/(Scheduled Tribes) Order, 1950 in the State of Bihar.

12. It was submitted that the place of origin of the appellant PankajKumar’s lineal descendants was of District Patna but he was born indistrict Hazaribagh on 27[th] November, 1974 and from the year 1989, heis the resident of District Ranchi where he obtained his education andlater appointed on 21[st] December, 1999 as Assistant Teacher in schoolin Ranchi and in terms of Section 73 read with Section 74 of the Act,2000 for all practical purposes, he became the ordinary resident of Stateof Jharkhand and it has not been disputed by the authorities of the Stateof Jharkhand that the caste certificate of the appellant, after goingthrough the rigors of disadvantages and social hardships, has been issuedto him in the State of Jharkhand in reference to the V[th ](Part VIA) andVI[th] (Part XXII) Schedule inserted to the Constitution(Scheduled Castes)/(Scheduled Tribes) Order, 1950 in reference to Sections 23 and 24 ofthe Act, 2000.

13. It was further submitted that the view expressed by the HighCourt under the impugned judgment in treating the appellant to be amigrant to the State of Jharkhand is not only in violation of Article 341(1)of the Constitution but also of the Scheme of the Act, 2000 and relianceplaced on the principles of migration held by the Constitution Benchjudgment of this Court in Marri Chandra Shekhar RaoVs. Dean,

ASeth G.S. Medical College and Others1; Action Committee on Issueof Caste Certificate to Scheduled Castes and Scheduled Tribes inthe State of Maharashtra and Anr.Vs. Union of India and Another2;and Bir SinghVs. Delhi Jal Board and Others3 has no application inthe facts of the instant case.B14. It was submitted that these all were the cases where theincumbent migrated voluntarily from one State to another State but forthe reason that nomenclature of the caste to which the incumbent belongedwere notified in both the States in the category of scheduled castesunder the Presidential Order of 1950, the incumbent migratee claimedhis right in the State where he had been migrated seeking the benefit ofCreservation as member of Scheduled Caste which admittedly themigratee was not entitled to claim in the later State.

15. But the case of the appellant is not of voluntary or involuntarymigration from the State of Bihar to the State of Jharkhand rather it is acase where the unified State of Bihar is divided into the two successorDState of Bihar and State of Jharkhand under the Act, 2000 and with theinclusion of the caste/tribe under the Presidential Order 1950 as amendedfrom time to time, the caste was identified because of the disadvantagesand social hardships being faced by the members concerned in theintegrated State of Bihar who were entitled to seek the benefit ofEreservation throughout the State of Jharkhand for public employment.

16. Learned counsel further submits that once the Presidentpursuant to Section 23 and 24 of the Act, 2000 has notified the V[th] andVI[th] Schedule to the Constitution(Scheduled Castes)/(Scheduled Tribes)Order, 1950 for the successor State of Jharkhand which includes theFcaste to which the appellant belong, their appears no rational basis todisentitle him from claiming privileges and benefits available to themembers of the SC/ST/OBC category, as the case may be, in thesuccessor State of Jharkhand.

17. Learned counsel for the appellants in the connected appeals,Gin addition, further submits that the appellants are members of SC/ST/OBC in the unified State of Bihar and after creation of the State ofJharkhand under the Act 2000, their castes/tribes/OBC are being duly

1 1990(3) SCC 1302 1994(5) SCC 244H3 2018(10) SCC 312

acknowledged in both the States, i.e. State of Bihar and State ofJharkhand and their rights seeking benefit of reservation in the State ofBihar have been restricted by proviso added to Section 4 by anamendment Act, 2003 in the Bihar Reservation of Vacancies in Postsand Services(for Scheduled Castes, Scheduled Tribes and OtherBackward Classes) Act, 1991 (hereinafter being referred to as the “Act1991”) limiting it to only those who are residing in the State of Bihar andif they are treated to be migrants in the State of Jharkhand as beingprojected by the respondents to nullify their claims seeking benefit ofreservation, they will be deprived of claiming reservation in both theStates (Bihar and Jharkhand) and taking assistance of the judgment ofthis Court in Sudhakar Vithal KumbhareVs. State of Maharashtraand Others4 and Sau KusumVs. State of Maharashtra and Others5,counsel submits that the High Court has committed serious error indeclining their claim and the minority view is based on the touch stone ofthe mandate of the Constitution and of the Act 2000 protecting theirfundamental rights enshrined under the Constitution which deservesacceptance by this Court.18. Mr. K.K. Venugopal, learned Attorney General, whilesupporting the minority view of the impugned judgment submits that theMinistry of Home Affairs issued Government Order dated 22[nd] February,1985 stating inter alia that persons belonging to the reserved categoryare entitled to claim benefits only within their home State and not in theState to which the incumbent has migrated and the Constitution Benchof this Court has further approved that one is entitled to claim benefit ofreservation only in their home State and not in the State one has migrated.

19. Learned Attorney General further submits that Articles 341(1)and 342(1) of the Constitution clearly mandates that the President withrespect to any State or Union Territory, and where it is State, afterconsultation with the Governor thereof, notify specifically the castes,races or tribes or parts of or groups within castes, races or tribes whichshall for the purposes of this Constitution be deemed to be ScheduledCastes in relation to that State or Union Territory and this negates thebenefits to be claimed by the incumbent in the State to which one hasmigrated for all practical purposes.

4 2004(9) SCC 481

5 2009(2) SCC 109

A20. The Presidential Order issued in exercise of Articles 341(1)and 342(1) of the Constitution notified the castes/tribes in the categoryof SC/ST and by separate notification in the category of OBC wasapplicable throughout the unified State of Bihar. The presumption has tobe drawn that unlike members of such castes which are notified, theirdisadvantages and social hardships have been noticed by the casteBcertificate issuing authority and the place of origin is material for theauthority to inquire as to whether the person is entitled to be memberof the Scheduled Castes or Scheduled Tribes notified in the Constitution(Scheduled Castes)/(Scheduled Tribes) Order, 1950 but after issuanceof the caste certificate, he become eligible to seek public employmentCand avail privileges and benefits flowing thereof throughout the Statewith no restrictions impounded thereof.

21. After the unified State of Bihar has been divided into twosuccessor States, i.e. State of Bihar and State of Jharkhand under theAct 2000 w.e.f. 15[th] November, 2000, and 18 districts of the unifiedDState of Bihar had been carved out under Section 3 of the Act, 2000 tothe successor State of Jharkhand with further rider/restriction underthe Act as being reflected under part VIII which relates for servingemployees and Section 73 read with Section 74 in particular protects therights of persons in employment working on or before the appointeddate, i.e. 15[th] November, 2000, and who are residents of 18 districtsEnotified under Section 3 of the Act became part of State of Jharkhand,their rights stand protected for all practical purposes in the givencircumstances, it may not be justiciable for the State of Jharkhand to saythat the rights of the incumbent including his caste certificate which heholds shall be protected in terms of Section 74 of the Act 2000 even forFhis promotion against the vacancy of SC/ST at later point of time butthe same incumbent will not be permitted to participate in the openselection in the State of Jharkhand as member of the reserved categoryfor the reason that his place of origin for the issuance of the castecertificate is in the State of Bihar particularly when he was working on

or before the appointed date, i.e. 15[th] November, 2000 either in one ofGthe 18 districts which formed part of Jharkhand or employees whotendered option, their services were protected by virtue of Section 73 ofthe Act 2000 and such class of incumbents would not be considered tobe migrants to the State of Jharkhand and according to him, their casesare covered by the judgments of this Court in Sudhakar VithalHKumbhare(supra) and Sau Kusum(supra)and submits that the

minority view is the correct view which deserves to be considered bythis Court with minor correction that in the minority judgment, thelearned Judge has expressed that such of the members of the SC/ST/OBC who belong to notified castes in the State of Bihar and State ofJharkhand under the Presidential Order 1950 are entitled to claim benefitof reservation in both the States is not the correct view for the reasonthat one can claim benefit of reservation in either of the State and oncethese incumbents became ordinary resident of the State of Jharkhand,they are entitled to claim benefit of reservation only in the State ofJharkhand and that is the reason for which the amendment has beenmade by the State of Bihar under the Act 1991 by adding proviso toSection 4 of the Amendment 2003 indicating that those who are residingout of the State of Bihar shall not be entitled to claim benefits of reservationunder the Act 1991.

22. Per contra, learned counsel for the State of Jharkhand, on theother hand, while supporting the majority view of the impugned judgmentsubmits that the appellants are neither the original inhabitants norpermanent residents of 18 districts that form part of the State of Jharkhandin terms of Section 3 of the Act 2000. They are originally permanentinhabitants and residents of the territories which now form an integralpart of the successor State of Bihar and taking note of Articles 341 and342 of the Constitution of India, as interpreted by the Constitution Benchof this Court in Marri Chandra Shekhar Rao(supra); ActionCommittee on Issue of Caste Certificate to Scheduled Castesand Scheduled Tribes in the State of Maharashtra and Anr.(supra)and Bir Singh (supra)and taking note of the Government Order dated22[nd] March, 1977 followed with Government Order dated 22[nd] February,1985, submits that all the incumbents although are undisputedly themembers of SC/ST/OBC and their caste has been notified by anamendment to the Constitution(Scheduled Castes)/(Scheduled Tribes)Order, 1950 in the State of Jharkhand in terms of Sections 23 and 24 ofthe Act, 2000 but would make them entitled to claim benefit of reservationin the State of Bihar and the fact that they have been residing in theState of Jharkhand on or before the appointed date, i.e. 15[th] November,2000 will only protect their rights/service conditions under Chapter VIIIof Act 2000, and if any of them wants to appear and participate in theopen selection seeking public employment or claiming other privileges,etc. they would be treated to be migrant to the State of Jharkhandregardless of the fact that their caste is being notified in the successor

AState of Jharkhand by an amendment in the Presidential Order of 1950and once this has been expressly expounded by the Constitution Benchof this Court of which reference has been made, their claim has beenrightly considered and repelled by the majority view expressed in theimpugned judgment and that needs no interference of this Court.

B23. We have considered the submissions made by the parties andwith their assistance perused the material available on record.

24. The mandate of affirmative action in favour of ScheduledCastes/Scheduled Tribes indeed has an important place in ourconstitutional scheme. Articles 341(1) and Article 342(1) of theCConstitution of India empowers the President to specify the race ortribes or part of groups within caste, race or tribes with respect to anyState or Union Territory for the purpose of the Constitution deemed tobe SC/ST in relation to that State or Union Territory, as the case may be.The object of Articles 341(1) and 342(1) of the Constitution is to provideadditional protection to the members of the SC/ST having regard to theDsocial and economical backwardness from which they suffer. It is obviousthat in specifying castes, race or tribes, the President has been authorisedto limit notification to part of groups with the castes, etc. and that mustmean that after examination of the disadvantages from which they havesuffered and the social and economic backwardness, the President mayEspecify castes/tribes etc. as parts thereof in relation to the entire Stateor in relation to parts of the State where he is satisfied that afterexamination of the disadvantages, social and educational hardship andbackwardness of the race, caste or tribes justifies such specification.

25. Articles 341 and 342 make it clear that the caste, race or tribeFor part of or group within any caste, race or tribe as specified in thePresidential Order under Article 341(1) or tribal community, as notifiedin the Presidential Order under Article 342(1) shall be deemed to beScheduled Castes/Scheduled Tribes for the purpose of the Constitutionin relation to that State or Union Territory, as the case may be and thisexposition has been made clear from clause (2) of the ConstitutionG(Scheduled Castes)/(Scheduled Tribes) Order, 1950.

26. There are various parameters which have to be taken intoconsideration to recognize caste/race as Scheduled Caste/ScheduledTribe in State/Union Territory or particular part thereof. This clearlymanifests from the mandate of Article 341(1) and 342(1) of theH

Constitution that after elaborate enquiries are made, the Presidentialorders are issued. While doing so, the Presidential Orders not only providesthat even specified parts or groups of castes, races or tribes/tribalcommunity could be Scheduled castes/Scheduled Tribes in particularState/Union Territory but also makes it clear that certain castes or tribesor parts/groups thereof could be Scheduled Castes/Scheduled Tribes inspecified/particular area/district of State/Union Territory.

27. The consideration for specifying Scheduled Caste orScheduled Tribes or Backward Classes in any given State depends onthe nature and extent of the disadvantages and social and educationalbackwardness/hardships suffered by the members concerned of the classin the State specific but that may be absent in another State to which theperson has migrated.

28. Whenever States’ reorganization has taken place in the past,Parliament has exercised its powers under Articles 341(1) and 342(1)and notified specific castes/tribes that were entitled to be recognized asScheduled Castes/Scheduled Tribes in relation to the reorganized States/Union Territories. The scheme of the Constitution(Scheduled Castes)/(Scheduled Tribes) Order, 1950 makes it clear that the intention of theParliament was to extend the benefits of reservation in relation to theState specific/Union Territory only to the castes, races or tribes asmentioned in the Presidential Orders.

29. The President, after consultation with the Governor and Statesconcerned in exercise of its power conferred under Articles 341(1) and342(1) of the Constitution of India notified the Constitution(ScheduledCastes) Order 1950 and the Constitution(Scheduled Tribes) Order, 1950the part of which relevant for the purpose is as under:-

(Scheduled Caste)

PART II – BIHAR

2. In Patna and Tirhut divisions, and the districts of Monghyr,CBhagalpur, Purnea and Palamau:-Bhumij

2. In the districts of Ranchi, Singbhum, Hazaribagh, Santal,Parganas and Manbhum:-

Bhumij

30. It may be relevant to note that in the Constitution(ScheduledCastes) Order, 1950, 21 castes have been notified in the category ofScheduled Castes which applies throughout the State. At the same time,there are castes like ‘Bhumij, Bhuiya and Dabgar’, which are identifiedon region basis. In the Constitution(Scheduled Tribes) Order, 1950, 28castes have been notified as Scheduled Tribes which applies throughoutthe State and caste ‘Bhumij’ in certain regions is in the schedule ofScheduled Castes and the very caste ‘Bhumij’ of the same nomenclaturein other districts/regions in the unified State of Bihar is notified asScheduled Tribes. Certain modifications were made at later stage inthe year 1956 and thereafter but that may not be so relevant for thepresent purpose.

31. To identify that the person is member of the ScheduledCaste or Scheduled Tribe, it may be imperative for him to justify andestablish that he is member of that caste/tribe who has been suffererof disadvantages or social hardships or economic sufferings to whichthe members of the castes/tribes were subjected to and is identified inthe Presidential Notification of 1950 and the caste certificate issuanceauthority has to take into consideration the place of origin/domicile andresident of the State to conduct discreet enquiry or inquiry contemplatedunder the scheme of rules for the purpose of recording finding as towhether the incumbent who claimed to be member of the ScheduledCaste or Scheduled Tribe or OBC, as the case may be, is eligible andentitled for issuance of the caste certificate as has been claimed by himand once certificate is issued to him, he becomes member of thescheduled caste or scheduled tribe or other backward class, as the casemay be, and his wards also at later stage became entitled to seekprivileges and benefits flowing thereof throughout the State which areadmissible under the law.

A32. At the same time, such of the castes/tribes which are regionbased, the incumbent has to furnish in the first instance the place oforigin/domicile of that particular region where the caste/tribe has beenidentified as scheduled caste/scheduled tribe to make him entitled toclaim reservation of SC/ST, as the case may be, and after the castecertificate is issued to the incumbent, his wards also became entitled toBclaim the privileges and benefits of the reservation admissible under thelaw throughout the State.

33. The Act 2000 was enacted by the Parliament, which cameinto force on the appointed day i.e. 15[th] November 2000 and under Section3 of the Act 2000, successor State of Jharkhand was formed comprisingCof 18 districts of the integrated State of Bihar and the said territoriesceased to form part of the State of Bihar. The scheme of Act 2000clearly demonstrates that apart from the territorial division of State ofBihar and State of Jharkhand, provision was made in the Constitutionconsisting of the representation of the legislators, the house of people,Dthe legislative assembly, delimitation of Constituencies, etc. Amendmentwas made to the Presidential Order 1950 to the scheduled castes/scheduled tribes from the appointed date, i.e. 15[th ]November, 2000pursuant to Sections 23 and 24 of the Act enacted V[th](Part VIA) andVI[th](Part XXII) Schedule to apply throughout the State of Jharkhand.E34. The Presidential Order 1950 notifying the castes/tribes notifiedfor the State of Jharkhand after an amendment to the Constitution(Scheduled Castes)/(Scheduled Tribes) Order, 1950 introducing Scheduleto Sections 23 and 24 of the Act 2000 are reproduced hereunder:-

THE FIFTH SCHEDULE

F(See Section 23)

AMENDMENT OF THE CONSTITUTION (SCHEDULEDCASTES)

ORDER, 1950

GIn the Constitution (Scheduled Castes) Order, 1950, in theSchedule,—

(i) in Part III relating to State of Bihar, in item No. 5, the bracketsand words “(excluding North Chhotanagpur and SouthChhotanagpur divisions and Santhal Parganas district)” shall beHomitted;

(ii) after Part VI, Himachal Pradesh, the following shall be inserted,namely:—

“PART VIA –Jharkhand

1. Bantar2. Bauri3. Bhogta4. Bhuiya5. Chamar, Mochi6. Chaupal7. Dabgar8. Dhobi9. Dom,

Dhangad10. Dusadh, Dhari, Dharhi11. Ghasi12. Halalkhor13. Hair, Mehtar, Bhangi14. Kanjar15. KuraiarC16. Lalbegi17. Musahar18. Nat19. Pan, Sawasi20. Pasi21. Rajwar

22. Turi

THE SIXTH SCHEDULE

(See section 24)

AMENDMENT TO THE CONSTITUTION (SCHEDULEDTRIBES)

ORDER, 1950

In the Constitution (Scheduled Tribes) Order, 1950,—

(1) in paragraph 2, for the figures “XXI” the figures “XXII”shall be substituted;

(2) in the Schedule,—

(i) in Part III relating to State of Bihar, the item No. 6 andthe entries relating thereto, shall be omitted, and the itemNos. 7 to 30 shall be renumbered as item Nos. 6 to 29;

(ii) after Part XXI, the following Part shall be inserted,namely:—

“PART XXII –Jharkhand

1. Asur2. Baiga3. Banjara4. Bhathudi5. Bedia6. Binjhia

35. It may be noticed that in the integrated State of Bihar, thesevery castes/tribes have been identified under the Constitution (ScheduledCastes)/(Scheduled Tribes) Order, 1950, it applies throughout the Stateof Bihar including 18 districts which now form the territorial jurisdictionof the successor State of Jharkhand created in terms of Section 3 of theDAct, 2000.

36. In the integrated State of Bihar, in terms of the Constitution(ScheduledCastes)/(Scheduled Tribes) order, 1950, after the castecertificate of the Scheduled Castes/Scheduled Tribes/OBC has beenissued to the incumbent on the basis of his place of origin/domicile, madeEhim entitled to claim privileges and benefits throughout the State of Bihar.After the incumbent has enjoyed the privileges and benefits as memberof Scheduled Caste/Scheduled Tribe/OBC for more than five decades,at the time of issuance of the amendment notification introducing V[th]and VI[th] Schedule in terms of Sections 23 and 24 of Act 2000 in November2000, those very castes/tribes/OBC with the same nomenclature andFgeographical conditions, now located in the successor State of Jharkhandby virtue of Section 3 of the Act 2000 became applicable to the residentsof the successor State for all practical purposes.

37. The Constitution Bench of this Court in Marri ChandraShekhar Rao (supra)had an occasion to examine as to whether theGperson belonging to Scheduled Castes in relation to particular Statewould be entitled to the benefits or concessions allowed to ScheduledCastes in the matter of education/employment in another State. Referringto various provisions of the Constitution and the grounds on which thePresidential Orders were issued and noticing earlier judgments, this Courtheld as under:-H

“9. It appears that Scheduled Castes and Scheduled Tribes insome States had to suffer the social disadvantages and did nothave the facilities for development and growth. It is, therefore,necessary in order to make them equal in those areas where theyhave so suffered and are in the state of underdevelopment tohave reservations or protection in their favour so that they cancompete on equal terms with the more advantageous or developedsections of the community. Extreme social and economicbackwardness arising out of traditional practices of untouchabilityis normally considered as criterion for including community inthe list of Scheduled Castes and Scheduled Tribes. The socialconditions of caste, however, varies from State to State andit will not be proper to generalise any caste or any tribe as aScheduled Tribe or Scheduled Caste for the whole country.This, however, is different problem whether member or theScheduled Caste in one part of the country who migrates to anotherState or any other Union territory should continue to be treated asa Scheduled Caste or Scheduled Tribe in which he has migrated.That question has to be judged taking into consideration the interestand well-being of the Scheduled Castes and Scheduled Tribes inthe country as whole.”

(emphasis supplied)

38. This Court, while rejecting the contention that the member ofthe Scheduled Castes/Scheduled Tribes should get the benefit for thepurpose of Constitution through out the territory of India, observed thatif such contention is to be accepted, the very expression “in relation toState” would lose its significance.Marri Chandra Shekhar Rao (supra)was further followed by another Constitution Bench of this Court inAction Committee on Issue of Caste Certificate to Scheduled Castesand Scheduled Tribes in the State of Maharashtra and Anr.(supra)which further came to be followed by another Constitution Bench of thisCourt in Bir Singh (supra)wherein in para 34, it was held as under:-

“34. Unhesitatingly, therefore, it can be said that personbelonging to Scheduled Caste in one State cannot be deemed tobe Scheduled Caste person in relation to any other State towhich he migrates for the purpose of employment or education.The expressions “in relation to that State or Union Territory” and“for the purpose of this Constitution” used in Articles 341 and 342

Aof the Constitution of India would mean that the benefits ofreservation provided for by the Constitution would stand confinedto the geographical territories of State/Union Territory in respectof which the lists of Scheduled Castes/Scheduled Tribes havebeen notified by the Presidential Orders issued from time to time.A person notified as Scheduled Caste in State ‘A’ cannot claimBthe same status in another State on the basis that he is declaredas Scheduled Caste in State ‘A’.”

(emphasis supplied)

39. So far as involuntary migration from one State to anotherState is concerned, the Constitution Bench of this Court in MarriChandra Shekhar Rao(supra)taking note of the fate of those castes/tribes seeking protection of being classed as Scheduled Castes orScheduled Tribes in the State of their origin when, because of transferDor movement of their father or guardian’s business or service, they moveto another State having considered the fate of their migration from oneState to another State being involuntary, by force or circumstances eitherof employment or of profession, left it for the legislature or the Parliamentto consider it for appropriate legislation bearing that aspect in mind thattheir rights and privileges as members of Scheduled Castes/ScheduledETribes be well protected by virtue of provisions of Articles 341(1) and342(1) of the Constitution and observed in para 23 as under:-

“23. Having construed the provisions of Articles 341 and 342 ofthe Constitution in the manner we have done, the next questionthat falls for consideration, is, the question of the fate of thoseFScheduled Caste and Scheduled Tribe students who get theprotection of being classed as Scheduled Caste or Scheduled Tribein the States of origin when, because of transfer or movement oftheir father or guardian’s business or service, they move to otherStates as matter of voluntary (sic involuntary) transfer, will theyGbe entitled to some sort of protective treatment so that they maycontinue or pursue their education. Having considered the factsand circumstances of such situation, it appears to us that wherethe migration from one State to another is involuntary, by force ofcircumstances either of employment or of profession, in such casesif students or persons apply in the migrated State where without

affecting prejudicially the rights of the Scheduled Castes orScheduled Tribes in those States or areas, any facility or protectionfor continuance of study or admission can be given to one whohas or migrated then some consideration is desirable to be madeon that ground. It would, therefore, be necessary and perhapsdesirable for the legislatures or the Parliament to considerappropriate legislations bearing this aspect in mind so that propereffect is given to the rights given to Scheduled Castes andScheduled Tribes by virtue of the provisions under Articles 341and 342 of the Constitution. This is matter which the Statelegislatures or the Parliament may appropriately take intoconsideration.”

(emphasis supplied)

40. In relation to Backward Classes, this Court in M.C.D.Vs. Veena and Others6 has specifically held that migrants are not entitledfor reservation as Other Backward Classes (OBCs) in the States/UnionTerritories where they have migrated. The relevant portion of thejudgment that may be noticed is as hereunder:

“6. Castes or groups are specified in relation to given State orUnion Territory, which obviously means that such caste wouldinclude caste belonging to an OBC group in relation to that Stateor Union Territory for which it is specified. The matters that areto be taken into consideration for specifying particular caste in aparticular group belonging to OBCs would depend on the natureand extent of disadvantages and social hardships suffered by thatcaste or group in that State. However, it may not be so in anotherState to which person belonging thereto goes by migration. Itmay also be that caste belonging to the same nomenclature isspecified in two States but the considerations on the basis of whichthey had been specified may be totally different. So the degree ofdisadvantages of various elements which constitute the data forspecification may also be entirely different. Thus, merely becausea given caste is specified in one State as belonging to OBCs doesnot necessarily mean that if there be another group belonging tothe same nomenclature in another State, person belonging tothat group is entitled to the rights, privileges and benefits admissible

560SUPREME COURT REPORTS

Ato the members of that caste.These aspects have to be borne inmind in interpreting the provisions of the Constitution withreference to application of reservation to OBCs.”

(emphasis supplied)

41. By the judgments of the Constitution Bench of which theBreference has been made (supra), it has been settled that the personbelonging to Scheduled Castes/Scheduled Tribes/OBC of the State, onmigration to another State voluntarily or involuntarily, will not be entitledto claim benefits of reservation including privileges and benefitsadmissible to the member of the Scheduled Castes/Scheduled Tribes/COBC even though, the caste or tribe of the same nomenclature is notifiedin the latter State(State where migrated) and if that is being permitted,the very expression as mandated under Articles 341(1) and 342(1) ofthe Constitution in “relation to the State” would become otiose and thisissue remain no more res integra after the pronouncements made by theConstitution Bench of this Court.D

42. Learned counsel for the respondents has placed heavy relianceon the Government Order issued by the Ministry of Home Affairs dated22[nd] March, 1977 followed with 18[th] November, 1982, 6[th] August, 1984and 22[nd] February, 1985. The bare perusal of the Government Orders ofwhich reference has been made are addressed to the Chief SecretariesEof all State Governments/Union Territory administrations in the form ofclarifications issued from time to time to the respective competentauthorities for issuance of Scheduled Castes/Scheduled Tribes castecertificates.

43. In the Government Order dated 22[nd] February 1985, aFclarification was made that the persons belonging to Scheduled Castes/Scheduled Tribes who were migrated from one State to another for thepurpose of employment, education etc. will be deemed to be theScheduled Castes/Scheduled Tribes in State of his origin and will beentitled to derive benefits from the State of origin and not from the StateGto which he has migrated. The extract of the Order dated 22[nd] February,1985 is referred hereunder:-

“It is also clarified that Scheduled Caste/tribe persons who hasmigrated from the State of origin to some other State for the purposeof seeking education, employment, etc. will be deemed to be aScheduled Caste/tribe of the State of his origin and will be entitledH

to derive benefits from the State of origin and not from the Stateto which he has migrated.”

44. It may further be noticed that the successor State of Biharwhich was represented before the High Court through their counselplaced on record the provisions of the Act, 1991 and the emphasis wason proviso to Section 4 added by an amendment Act, 2003 to justifythat those who are residing out of the State of Bihar would not be entitledto claim the benefit of reservation in the matter of appointments in theState of Bihar. The proviso added to Section 4 by amendment Act 2003to Act 1991 is quoted hereunder:-

“Provided further that the candidates residing out of the State ofBihar shall not claim for benefits of reservation under this Act.”

45. In the instant case, we are not examining the issue of voluntaryor involuntary migration of the members of the SC/ST/OBC from State‘A’ to another State ‘B’ claiming privileges/benefits admissible to memberof SC/ST/OBC even though there is caste or tribe of the samenomenclature in the latter State.

46. The question that emerges for our consideration in the instantappeals is whether person, who has been resident of the State ofBihar and where the Constitution(Scheduled Castes)/(Scheduled Tribes)Order, 1950 identifying castes/tribes is issued extending the benefit tomembers of SC/ST throughout the integrated State of Bihar which waslater on bifurcated by virtue of statutory instrument, i.e., the Act, 2000,into two successor States (State of Bihar and State of Jharkhand) withtheir rights and privileges to the extent being protected by legislativeenactment under the provisions of the Act 2000, could still be consideredto be migrant to the successor State of Jharkhand depriving them oftheir privileges and benefits to which the incumbent or their linealdescendants has availed from the very inception of the Presidential Order1950 in the integrated State of Bihar.

47. As regards the employees serving immediately before theappointed day in connection with the affairs of the State of Bihar areconcerned, special provisions have been made to protect their serviceconditions under Part VIII of the Act 2000 and for its implementation,the Government of India in exercise of its power under Section 72 cameout with scheme laying down the criteria for allocation of the employeesto the State of Jharkhand and more specifically, so far as Scheduled

ACastes/Scheduled Tribes/OBC are concerned, allocation has taken placebased on (1) domicile (2) option of the employee (3) if still the postsremain vacant, allocation to take place amongst those who are in the‘juniority’ cadre in the reverse order of seniority. The extract of theGovernment Order issued by the Department of Personnel & Training,Government of India for protecting the service conditions of the servingBemployees under Act, 2000 is reproduced hereunder:-

“Department of Personnel &Tranining

State Reorganization

Introduction

State Reorganization Acts were enacted in November 2000 forthe purpose of reorganization of the then existing States of UttarPradesh, Madhya Pradesh and Bihar. As result, UP wasbifurcated into UP & Uttarakhand, MP became MP & Chhattisgarhand Bihar was reorganized into Bihar and Jharkhand. As perprovisions of these three Acts, Central Government is vested withthe authority for allocating services of personnel between thesuccessor States in connection with the State Re-organisation. Other than the employees of All IndiaServices, State Government employees of State Cadre, areallocated between the successor States by the State Re-organisation (SR) Division in the Department of Personnel &Training.At present allocation of State Government employeesbetween the successor States of Uttar Pradesh / Uttarakhand,Madhya Pradesh/ Chhattisgarh and Bihar/Jharkhand, is inprogress.

Basis of Allocation

The strength of Employees / vacancies existed as on the AppointedDay is the base for allocation of posts between the successorStates. The appointed day for Uttar Pradesh, Madhya Pradeshand Bihar are as under:-

Criteria of Allocation

The broad principle of allocation of State cadre employees whichinter alia include allocation first by option, followed by domicile(Home District) and lastly by inclusion of junior most personnel inthe reverse order of seniority. If the number of posts allocated toa successor States are more than the total number of optees anddomicile (Home District), in order to fill up the balance posts, theemployees lower down in the seniority position in the cadre areconsidered for allocation even against their options. Option onceexercised by the employees is not reversible. Keeping in view theresentment expressed by the employees who were allocated ondomicile and juniority basis against their willingness, severalexceptions were made to the guidelines to facilitate certain classof employees to be allocated to the States of their option.

The following are the exceptions to the above mentioned policy:-

[2021] 8 S.C.R.

A#family include spouse, dependent children and dependent parents.(f) Final Allocation

Based on the recommendations of the State Advisory Committeeand after ensuring that the recommendations are as per theGuidelines on Reorganization, the Central Government issues finalBallocation of personnel between the successor States.”

48. By introducing the Act 2000, so far as the conditions of serviceof the serving employees is concerned, are indeed being protected byvirtue of Section 73 read with Section 74 under Part VIII of the Act2000 which clearly provides that such of the employees who wereCappointed immediately before the appointed date holding or dischargingduties of any post or office in connection with the affairs of the existingState of Bihar in any area now falling in the successor State of Jharkhandshall continue to hold the same post or office in the successor Stateprovided option has been exercised to remain in the State of Bihar, theyDshall be deemed to be duly appointed to the post or office of the successorState. As consequence, such of the employees who are workingimmediately on or before the appointed date, i.e., 15[th ]November, 2000 inthose 18 districts which have been formed part of the State of Jharkhandin terms of Section 3 of the Act be deemed to be appointed in therespective successor State of Jharkhand, with their service conditionsEnot to be varied to his disadvantage except with the previsous approvalof the Central Government. Sections 73 and 74 of the Act releavant forthe purpose are extracted hereunder:-

“Section 73. Other provisions relating to services. - (1)Nothing in Section 72 shall be deemed to affect on or after theFappointed day the operation of the provisions of Chapter I of PartXIV of the Constitution in relation to determination of the conditionsof service of persons serving in connection with the affairs of theUnion or any State:

Provided that the conditions of service applicableGimmediately before the appointed day in the case of any persondeemed to have been allocated to the State of Bihar or to theState of Jharkhand under Section 72 shall not be varied to hisdisadvantage except with the previous approval of the CentralGovernment.

(2) All services prior to the appointed day rendered by person—

(a) if he is deemed to have been allocated to any State underSection 72, shall be deemed to have been rendered inconnection with the affairs of that State;

(b) if he is deemed to have been allocated to the Union inconnection with the administration of the Jharkhand shall bedeemed to have been rendered in connection with the affairsof the Union, for the purposes of the rules regulating hisconditions of service.

(3) The provisions of Section 72, shall not apply in relation tomembers of any All-India Service.

Section 74. Provisions as to continuance of officers in samepost. - Every person who, immediately before the appointed dayis holding or discharging the duties of any post or office inconnection with the affairs of the existing State of Bihar in anyarea which on that day falls within any of the successor Statesshall continue to hold the same post or office in that successorState, and shall be deemed, on and from that day, to have beenduly appointed to the post or office by the Government of, or anyother appropriate authority in, that successor State:

Provided that nothing in this section shall be deemed toprevent competent authority on and from the appointed day,from passing in relation to such person any order affecting thecontinuance in such post or office.”

49. The scheme of the Act 2000 postulates that employees whoare working immediately on or before the appointed date, in the State ofBihar, has either domicile of the districts that formed part of State ofJharkhand under Section 3 of the Act or opted or joined being junior intheir respective seniority, stands absorbed in the successor State ofJharkhand and by virtue of statutory instrument, their service conditionsstand protected and became entitled to claim privileges and benefits towhich the members of scheduled castes/scheduled tribes/OBC areentitled for in terms of the Presidential Order 1950 as amended fromtime to time.

50. This Court, while examining almost similar nature ofcontroversy inSudhakar Vithal Kumbhare (supra)held as under:-

A“5. But the question which arises for consideration herein appearsto have not been raised in any other case. It is not in dispute thatthe Scheduled Castes and Scheduled Tribes have suffereddisadvantages and been denied facilities for development andgrowth in several States. They require protective preferences,facilities and benefits inter alia in the form of reservation, so as toBenable them to compete on equal terms with the more advantagedand developed sections of the community. The question is as towhether the appellant being Scheduled Tribe known as Halba/Halbi which stands recognized both in the State of MadhyaPradesh as well as in the State of Maharashtra having their originCin Chhindwara region, part of which, on States’ reorganisation,has come to the State of Maharashtra, was entitled to the benefitof reservation. It is one thing to say that the expression “in relationto that State” occurring in Article 342 of the Constitution of Indiashould be given an effective or proper meaning so as to excludethe possibility that tribe which has been included as ScheduledDTribe in one State after consultation with the Governor for thepurpose of the Constitution may not get the same benefit in anotherState whose Governor has not been consulted; but it is anotherthing to say that when an area is dominated by members of thesame tribe belonging to the same region which has been bifurcated,Ethe members would not continue to get the same benefit whenthe said tribe is recognized in both the States. In other words, thequestion that is required to be posed and answered would be as towhether the members of Scheduled Tribe belonging to one regionwould continue to get the same benefits despite bifurcation thereofin terms of the States Reorganisation Act. With view to find outFas to whether any particular area of the country was required tobe given protection is matter which requires detailed investigationhaving regard to the fact that both Pandhurna in the district ofChhindwara and part of the area of Chandrapur at one point oftime belonged to the same region and under the ConstitutionG(Scheduled Tribes) Order, 1950 as it originally stood the tribe Halba/Halbi of that region may be given the same protection. In caseof this nature the degree of disadvantages of various elementswhich constitute the input for specification may not be totallydifferent and the State of Maharashtra even after reorganisationmight have agreed for inclusion of the said tribe Halba/Halbi as

Scheduled tribe in the State of Maharashtra having regard to thesaid fact in mind.”

51. It was case where the person was member of ScheduledTribe known as Halba/Halbi. The tribe had its origin in DistrictChhindwara region which is part of State of Madhya Pradesh, partof the district of Chhindwara place Chandrapur, on States’ reorgaisation,came to the existing State of Maharashtra from the State of MadhyaPradesh, it was not considered case of migration from State of MadhyaPradesh to State of Maharashtra. But the State of Maharashtra beingthe existing State and degree of disadvantages of various elements maybe different on the objection being raised by the State of MaharashtraCity Board where the incumbent was employed, it was left open forexamination by the scrutiny committee constituted and establishedpursuant to judgment of this Court in Kumari Madhuri Patil andAnotherVs. Addl. Commissioner, Tribal Development and Others7.52. There is fundamental dichotomy in the submissions made bythe counsel for the State of Jharkhand that the existing service conditionsincluding benefit of reservation in the promotional cadre post shall not bevaried to his disadvantage but he shall be considered to be migrant tothe State of Jharkhand while participating in public employment tocompete in open/general category and asked to seek the benefit ofreservation in the neighbouring State of Bihar, to hold different status inhis parent State of Jharkhand after he became member of service ofthe State of Jharkhand, serving for sufficient long time on and after theappointed day, i.e. 15[th] November, 2000 in the State is unsustainable inlaw and in contravention to the scheme of the Act 2000.

53. It will be highly unfair and pernicious to their interest if thebenefits of reservation with privileges and benefits flowing thereof arenot being protected in the State of Jharkhand after he is absorbed byvirtue to Section 73 of the Act 2000 that clearly postulates not only toprotect the existing service conditions but the benefit of reservation andprivileges which he was enjoying on or before the appointed day, i.e.15[th] November, 2000 in the State of Bihar not to be varied to hisdisadvantage after he became member of service in the State ofJharkhand.

7 1994(6) SCC 241

A54. The collective readings of the provisions of the Act, 2000makes it apparent that such of the persons whose place of origin/domicileon or before the appointed day was of the State of Bihar now fallingwithin the districts/regions which form successor State, i.e., State ofJharkhand under Section 3 of the Act, 2000 became ordinary resident ofthe State of Jharkhand, at the same time, so far as the employees whoBwere in public employment in the State of Bihar on or before the appointedday, i.e. 15[th] November, 2000 under the Act 2000, apart from those whoare domicile of either of the district which became part of the State ofJharkhand, such of the employees who have submitted their option oremployees who are junior in the cadre of their seniority as per the policyCof the Government of India of which reference has been made, eithervoluntarily or involuntarily call upon to serve the State of Jharkhand,their existing service conditions shall not be varied to their disadvantageand stands protected by virtue of Section 73 of the Act, 2000.

55. In our considered view, such of the employees who areDmembers of the SC/ST/OBC whose caste/tribe has been notified by anamendment to the Constitution(Scheduled Castes)/(Scheduled Tribes)Order 1950 under V[th] and VI[th] Schedule to Sections 23 and 24 of theAct 2000 or by the separate notification for members of other backwardclass category, benefit of reservation including privileges and benefitsflowing thereof, shall remain protected by virtue of Section 73 of the ActE2000 for all practical purposes which can be claimed (including by theirwards) for participation in public employment.

56. It is made clear that person is entitled to claim benefit ofreservation in either of the successor State of Bihar or State of Jharkhand,but will not be entitled to claim benefit of reservation simultaneously inFboth the successor States and those who are members of the reservedcategory and are resident of the successor State of Bihar, whileparticipating in open selection in State of Jharkhand shall be treated tobe migrants and it will be open to participate in general category withoutclaiming the benefit of reservation and vice-versa.G

57. We are of the view that the present appellant Pankaj Kumarin Civil Appeal @ SLP(Civil) No.13473 of 2020, being serving employeein the State of Jharkhand by virtue of Section 73 of the Act 2000, wouldbe entitled to claim the benefit of reservation including the privileges andbenefits admissible to the members of Scheduled Caste category in the

State of Jharkhand for all practical purposes including participation inopen competition seeking public employment.

58. So far as the case of other appellants in Civil Appeals @ SLP(Civil) Nos. 3610-3615 of 2021 is concerned, there is no material placedby either of them on record to justify that how long they were residing inthe districts which now form part of the successor State of Jharkhandand the advertisement of the year 2004 required that one has to submita caste certificate issued by the competent authority of the State ofJharkhand and none of them produced the caste certificate. As noticedby us, the present batch of appellants were appointed in the year 2005as Constables against the post reserved for Scheduled Caste/ScheduledTribe/OBC category in the State of Jharkhand, in our considered view,were migrants to the State of Jharkhand which would disentitle them inclaiming the benefit of reservation in view of the judgment of theConstitution Bench of this Court of which reference has beenmade(supra).

59. But taking note of the peculiar facts and circumstances of thecase which, however, cannot be ignored, that the appellants had bonafidelysubmitted their application pursuant to an advertisement dated 13[th]January, 2004 issued by the State of Jharkhand holding selection for thepost of Constable and it is not the case of the respondents that either ofthe appellant has misrepresented while participating in the selectionprocess or the caste/tribe/OBC to which either of the appellant belongsis not being notified in the Constitution(Scheduled Castes)/(ScheduledTribes) Order, 1950 which has been amended in reference to Sections23 and 24 of the Act 2000 or the class of OBC which has been notifiedby the State of Jharkhand and once the appellants are appointed, aftergoing through the process of selection served for 3-4 years, their servicescame to be terminated in June, 2008 and who were never at fault havelost almost 13 years in litigation and could not secure employment at alater stage. Taking note of the peculiar facts and circumstances and theperiod of service rendered, while exercising our plenary power underArticle 142 of the Constitution, to do complete justice, each of the appellantdeserves indulgence of reinstatement in service on notional fixation ofpay and allowances, etc.

60. Consequently, the appeals deserve to succeed and we holdthat the majority judgment of the High Court impugned dated 24[th] February,2020 is unsustainable and is hereby set aside. We are also not in agreement

Awith the minority judgment on principle and clarify that the person isentitled to claim the benefit of reservation in either of the successorState of Bihar or State of Jharkhand but would not be entitled to claimthe privileges and benefits of reservation simultaneously in both the Statesand if that is permitted, it will defeat the mandate of Articles 341(1) and342(1) of the Constitution.B

61. Accordingly, the appellant Pankaj Kumar in Civil Appeal @SLP(Civil) No. 13473 of 2020 shall be appointed pursuant to his selectionin reference to advertisement no. 11 of 2007 and he is entitled for hisseniority as per his placement in the order of merit with notional fixationof pay & allowances and in Civil Appeals @ SLP(Civil) Nos. 3610-3615Cof 2021, the order of termination of each of the appellant is hereby quashedand set aside and the appellants shall be reinstated in service with notionalpay & allowances and shall not be entitled for arrears of salary upto thedate of appointment/reinstatement.

62. Consequently, the appeals in the above terms stand disposedDof and compliance shall be made within six weeks. No costs.