AKHILESH PRASAD versus JHARKHAND PUBLIC SERVICE COMMISSION & ORS.

[2022] 19 S.C.R.

AAKHILESH PRASAD

JHARKHAND PUBLIC SERVICE COMMISSION & ORS.(Civil Appeal No. 3180 of 2022)

APRIL 26, 2022

[UDAY UMESH LALIT, S. RAVINDRA BHAT ANDPAMIDIGHANTAM SRI NARASIMHA, JJ.]

Service Law – Bihar Reorganisation Act, 2000 – Ss. 73 and74 – Services after reorganisation of State – Appellant cleared theCooperative Development Officers exam held in 1994 conductedCby the then Bihar Public Service Commission under the ScheduledTribe category – The State of Bihar was bifurcated in successorStates viz. State of Bihar and newly formed State of Jharkhand, asa result of Bihar Reorganisation Act, 2000 – After bifurcation ofthe State of Bihar, Appellant’s service was allocated to the successorDState of Jharkhand and since then he had been in the service ofState of Jharkhand – An advertisement was issued for filling up theposts of Deputy Collectors through limited departmentalexamination, the benefit of reservation according to which wouldbe extended to only those who submit the appropriate castecertificate from the Sub-Divisional officer posted in State ofEJharkhand – Appellant even though secured more marks as againstthe cut-off for ST category in the departmental exam was declaredunsuccessful – The Appellant challenged his non-selection by filinga Writ Petition which was allowed by the Single Judge of the HighCourt of Jharkhand – Single Judge of the High Court held that theFpetitioner was already working in the co-operative Department asa reserved category candidate – He carried his reserved categorywith him after bifurcation also – Thus, the State acknowledged thepetitioner as Scheduled Tribe category while he is working in Co-operative Department under the State, but not treating him asreserved category i.e. scheduled tribe for the purpose of limitedGexamination, is not acceptable neither his tenable in the eyes of law– However, the Division Bench of the High Court held that sincethe appellant had failed to comply with condition No.13 of theAdvertisement and since there was no certificate issued by any ofthe competent authorities that he belonged to ST (Gond) categoryHin State of Jharkhand, the appellant could not be said to be

belonging to the reserved category of STs for the purposes of limiteddepartmental examination – On appeal, held: Per Uday UmeshLalit, J. (for himself and Pamidighantam Sri Narasimha, J.)Supreme Court in Pankaj Kumar’s case held the employees whoopt for service under successor State after reorganization, theirexisting service conditions would not be varied to their disadvantageand would stand protected by virtue of Section 73 of the Act – Subjectto the condition that such person would not be entitled to claim thebenefit of reservation simultaneously in both the successor States,such employees would be entitled to claim not only the benefit ofreservation in the service of the successor State to which they hadopted and were allocated, but they would also be entitled toparticipate in any subsequent open competition with the benefit ofreservation – Single Judge of the High Court was therefore right inallowing the writ petition – Division Bench of the High Court wasnot justified in concluding that limited departmental examinationwas nothing but direct recruitment from the open market – PerRavindra Bhat, J.(concurring): There is an obligation on the partof Parliament, to provide clarity about the kind of protection,regarding the status of such individuals forced to chose one amongthe newly reorganized states, and ensure that they are not worse offas result of reorganization.

Allowing the appeal, the Court

HELD:

Per Uday Umesh Lalit, J. [For himself and PamidighantamSri Narasimha, J.]

1. The employees who opt for service under successorState after reorganization, their existing service conditions wouldnot be varied to their disadvantage and would stand protected byvirtue of Section 73 of the Act. Further, subject to the conditionthat such person would not be entitled to claim the benefit ofreservation simultaneously in both the successor States, suchemployees would be entitled to claim not only the benefit ofreservation in the service of the successor State to which theyhad opted and were allocated, but they would also be entitled toparticipate in any subsequent open competition with the benefitof reservation. [Para 17][415-B-C]

ABC

A2. The decision in Pankaj Kumar, was rendered by thisCourt on 19.8.2021, while the judgment presently under challengewas delivered by the High Court on 12.5.2021. The High Courtthus did not have the benefit of the decision of this Court. Thelaw having been settled in Pankaj Kumar, the judgment underappeal has to be read in light of the decision in Pankaj Kumar. ItBwould therefore be immaterial whether or not the nature of limiteddepartmental examination is to be taken as direct recruitment,as found by the Division Bench of the High Court. [Para 18][415-

3. In order to encourage meritorious candidates who mayCbe comparatively junior in service, window of opportunity isopened through limited departmental examination. Those whopass the examination are entitled to have an acceleratedpromotion. This process does not change the character ofmovement to the higher post and it continues to be promotionalDchannel. The Single Judge of the High Court was therefore rightin allowing the writ petition. The underlined portion from theorder passed by the Single Judge shows that the matter wasconsidered in the correct perspective. The Division Bench ofthe High Court was not justified in concluding that limiteddepartmental examination was nothing but direct recruitmentEfrom the open market. Therefore, the appeal is allowed andjudgment and order passed by the Division Bench is set aside,while the Order passed by the Single Judge of the High court isrestored. [Paras 20 & 24][417-G-H; 418-A-B, H]

Per S. RAVINDRA BHAT, J. (Concurring)F

1. In my considered opinion, given that statesreorganizations occur as consequence of political demands, oras an articulation of regional aspirations, there is no agency ofthe individual (i.e., members of Scheduled Caste or ScheduledTribe communities) in such eventuality. This situation is radicallyGdifferent from one, where member of such community,voluntarily seeks opportunities outside her or his statein whichcase, the rule in Marri Chandra Shekhar Rao would apply. Thereis, consequently, an obligation on the part of Parliament, to provideclarity about the kind of protection, regarding the status of suchHindividuals forced to chose one among the newly reorganizedstates, and ensure that they are not worse off as result ofreorganization. different kind of involuntary movement was alsocontemplated in Marri Chandra Shekhar Rao, where this courthad in fact commended Parliament (or the concerned statelegislatures) to make provisions for the future 9 prospects ofwards of members of Scheduled Castes or Scheduled Tribes whobecause of their conditions of public employment, have to go fromone state to another. Furthermore, the duty to provide clarityand protection, generally speaking has to be consistent - i.e., inthe case of one states’ reorganization, the protection should notbe greater than in the case of reorganization of another state.That would defeat the command of Articles 14 and 15 (1) (i.e., inthe latter case, there can possibly be discrimination on the groundof place of birth). In my opinion, this duty stems from co-jointreading of Part I (Articles 1 to 4), Articles 14, 15(1), 341, and 342of the Constitution, and the overarching concern that theindividual should not be worse off, due to disruption not of her orhis making. The duty of Parliament in such cases, is aConstitutional obligation, to ensure that no one individual or groupis disadvantaged. [Para 10][425-A-F]

Pankaj Kumar v. State of Jharkhand & Ors. (2021)SCC Online SC 616 – Relied on

Sudhakar Vithal Kumbhare v. State of Maharashtra &Ors. 2001 (4) BomCR 582 : [2003] 5 Supp SCR 746;State of Maharashtra and Anr. v. Union of India & Anr.[1994] 1 Supp SCR 71; U.P. Public Service Commission,Allahabad v. Sanjay Kumar Singh (2003) 7 SCC 657;State of Jharkhand v. Bhadey Munda (2014)10 SCC398 : [2014] 7 SCR 765; State of Mysore v. G. B. Purohit(1967) 1 SLR 753; Kumari Madhuri Patil and Anothervs. Addl. Commissioner, Tribal Development and Others,(1994) 6 SCC 241 : [1994] 3 Suppl. SCR 50; All IndiaJudges’ Association & Ors. v. Union of India and Ors.(2002) 4 SCC 247; Marri Chandra Shekhar Rao v.Dean Seth GS Medical College (1990) 3 SCC 130 :[1990] 2 SCR 843; Action Committee on Issue of CasteCertificate to Scheduled Castes and Scheduled Tribes

[2022] 19 S.C.R.

Ain the State of Maharashtra and Anr. v. Union of India& Anr. (1994) 5 SCC 244 : [1994] Supp SCR 714 –referred to.

CCIVIL APPELLATE JURISDICTION: Civil Appeal No. 3180of 2022.

From the Judgment and Order dated 12.05.2021 of the High Courtof Jharkhand at Ranchi in L.P.A. No. 609 of 2017.DManoj Tandon, Kumar Shivam, Mayank Sapre, Rohit Anil Rathi,Advs. for the Appellant.

Arunabh Chowdhury, Sr. Adv., Himanshu Shekhar, Parth Shekhar,Ms. Pragya Baghel, Kumar Anurag Singh, Abhishek Roy, Ms. TulikaMukherjee, Akshat Singh, Zain Khan, Sanjeev Singh, Rameshwar PrasadEGoyal, Advs. for the Respondents.

The Judgments* of the Court were delivered by

UDAY UMESH LALIT, J.

1. Leave granted.

2. This appeal challenges the judgment and final order dated12.05.2021 passed by the Division Bench of High Court[1] in LPA No.609of 2017.

3. In the Graduate Level (Special) Competitive Examination heldin the year 1994 for filling up the posts of Cooperative DevelopmentGOfficers, the then Bihar Public Service Commission vide letter dated24.07.1995 recommended the name of the appellant, who was at serialNo. 98 in the merit list, under Scheduled Tribe (‘ST’, for short) category.

1 High Court of Jharkhand at Ranchi.

*Ed. Note : There were two judgments—One pronounced by Uday Umesh Lalit, J. forhimself and Pamidighantam Sri Narasimha, J. – and the other pronounced by S. RavindraHBhat, J.

The claim that the appellant belonged to ST category (Gond) wassupported by Certificate issued to that effect on 03.06.1995 by theScrutiny Officer, Sonpur (Saran) which place now falls in the newlycarved State of Bihar after reorganization of States. Later, appointmentletter dated 10.11.1995 was issued to the selected candidates includingthe appellant. The appropriate entry in the service book shows the nameand category of the appellant as belonging to ST (Gond).

4. The then State of Bihar was bifurcated as result of BiharReorganization Act, 2000 [Act 30 of 2000] (‘the Act’, for short), whichcame into force on 15.11.2000. The erstwhile State of Bihar wasbifurcated in successor States viz. State of Bihar comprising of 38 districtsand newly formed State of Jharkhand comprising of 18 districts. Sections73 and 74 of the Act are as under:-

“73. Other provisions relating to services.—(1) Nothing in section72 shall be deemed to affect on or after the appointed day theoperation of the provisions of Chapter I of Part XIV of theConstitution in relation to determination of the conditions of serviceof persons serving in connection with the affairs of the Union orany State: Provided that the conditions of service applicableimmediately 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 renderedby person— (a) if he is deemed to have been allocated to anyState under section 72, shall be deemed to have been rendered inconnection with the affairs of that State; (b) if he is deemed tohave been allocated to the Union in connection with theadministration of the Jharkhand shall be deemed to have beenrendered in connection with the affairs of the Union, for thepurposes of the rules regulating his conditions of service. (3) Theprovisions of section 72, shall not apply in relation to members ofany All-India Service.

74. Provisions as to continuance of officers in same post.—Everyperson who, immediately before the appointed day is holding ordischarging the duties of any post or office in connection with theaffairs of the existing State of Bihar in any area which on that dayfalls within any of the successor States shall continue to hold the

Asame post or office in that successor State, and shall be deemed,on and from that day, to have been duly appointed to the post oroffice by the Government of, or any other appropriate authorityin, that successor State: Provided that nothing in this section shallbe deemed to prevent competent authority, on and from theappointed day, from passing in relation to such person any orderBaffecting the continuance in such post or office.”

5. After reorganization of the States, the appellant’s service wasallocated to the successor State of Jharkhand and since then the appellanthas been in the service of State of Jharkhand.

C6. On 14.08.2008, letter was issued by the Principal Secretary,Government of Jharkhand to all the Secretaries of departments regardingreservation in promotion in various categories of services under the Stateof Jharkhand. Paragraphs 1 and 4 of the communication were as under:-

“Sir, with reference to above subject, I, as directed, have to submitDthat, certain departments are expecting guidelines/counselling fromthis department on the following point:

“The benefit of reservation in promotions should only be givento the government servants of Scheduled Caste / ScheduledTribes if they are permanent residents of Jharkhand State, evenEif they were appointed in undivided Bihar.”

4. In this connection, the State Government, after due deliberations,has decided as under:

“The reserved category of employees, who were appointed inFreserved categories prior to constitution of State and were postedin Jharkhand State on the basis of division of cadre and they arepermanent residents of Bihar State, will be unaffected and theyshall be considered as government employees of reservedcategory.”

7. Advertisement No.9 of 2010 was issued by the Jharkhand PublicService Commission (‘the Commission’, for short) for filling up the postsof Deputy Collectors through limited departmental examination. SaidAdvertisement issued on 09.10.2010, however, prescribed that the benefitof reservation would be extended only to those who submit theHappropriate caste Certificate from the Sub-Divisional Officer posted in

State of Jharkhand. The appellant having offered his candidature for thelimited departmental examination, the same was forwarded by the officeof the Registrar, Cooperative Societies, Jharkhand to the Commission.

8. In the results of the examination declared on 04.05.2013, theappellant was declared unsuccessful though he had secured 123.68 marksas against the cut-off at 113.70 for ST category.

9. The appellant challenged his non-selection by filing Writ Petition(S) No.3480 of 2013, which was allowed by the Single Judge of theHigh Court by his judgment and order dated 22.09.2017 with followingobservations:-

“8. The aforesaid provision makes it abundantly clear that so faras the limited examination of the State of Jharkhand is concerned,the benefit of reservation may be extended to such candidatesalso, who are born on the reserved category post under the unifiedState of Bihar. The appointment to the post of Deputy collectormay be fresh appointment, but the process of the said appointmenthas to be seen. This examination is not general open competitiveexamination rather it is open for in service candidates ofGovernment of Jharkhand only. Thus, the persons who are notemployed under the State of Jharkhand, are not entitled to appearin the said examination. That means only Government employeeis entitled to appear in the said examination. The said employee, ifsucceeds in the examination and is appointed on the post of DeputyCollector, his past services with the State are also counted for allpurposes. Thus, it is in continuation of his earlier service.In thecase in hand, the petitioner was already working in the co-operativeDepartment as reserved category candidate and thereafter byvirtue of his employment in the Cooperative Department underthe State of Jharkhand, he qualified to appear in the examination.Admittedly he is reserved category Scheduled tribe candidateand after bifurcation of the State he was allocated the Jharkhandcadre. He carried his reserved category with him after bifurcationalso. Thus, the Resolution number 4722 dated 14.08.2008 appliesto the Petitioner. The State acknowledges the petitioner asScheduled Tribe category while he is working in Co-operativeDepartment under the State, but not treating him as reservedcategory i.e. scheduled tribe for the purpose of limited examination,is not acceptable to this Court neither his tenable in the eyes of

Alaw. The appointed cannot be said to be fresh appointment. Thepetitioner, after reorganization of the State, was allocated theJharkhand State cadre as Scheduled Tribe candidate. Thus, hisstatus as Scheduled Tribe candidate for the purpose of servicehas to be maintained. Thus, the claim of the Respondents that thePetitioner cannot be treated as scheduled tribe candidate is notBtenable in the eyes of law. Similar view has been reiterated bythis Court in W.P. (s)No.488 of 2013. The reliance has been placedby the Respondents on the judgment delivered by this Court inDivision Bench is of no help to them as they were on differentground and the present case is not case of submission ofCcertificate after the cut-off date.

9. As cumulative effect of the aforesaid rules, guidelines andjudicial pronouncements, I hereby direct the respondent - JPSCto consider the case of the petitioner for appointment on the postof Deputy Collector, pursuant to the Advertisement No. 09/10, asa Reserved category (scheduled tribe). The respondents aredirected to consider the candidature of the petitioner on the postof Deputy Collector, if he is found to be within consideration zoneon the basis of marks obtained by him vis-a-vis other candidatesof his category within period of two months from the date ofreceipt of copy of this order.”

(Emphasis added)

10. The Commission as well as State of Jharkhand being aggrieved,preferred LPA No.609 of 2017 and LPA No.164 of 2018 respectivelychallenging the view taken by the Single Judge. It was submitted that asFrequired by condition No.13 of the Advertisement, the caste certificate,as well as the proof of residence had to be obtained from Sub-DivisionalMagistrate posted within the jurisdiction of State of Jharkhand, and theappellant having failed to comply with such requirement, he could not beconsidered as candidate belonging to the reserved category in State ofJharkhand.G

In response, it was submitted on behalf of the appellant that thelimited competitive examination could not be construed to be freshappointment; rather it was case of promotion to the higher post and assuch the appellant who was already in the service under State ofJharkhand was entitled to offer his candidature as candidate belongingHto ST category.

11. Following questions were framed by the Division Bench ofthe High Court for its consideration: -

“(i)Whether the appointment through limited competitiveexamination is fresh appointment or by way of promotion?

(ii)Whether the provision of Section 73 of the BiharReorganization Act, 2000 will be applicable in the processof selection to be made through limited competitiveexamination after final order passed by the CentralGovernment under Section 72(2) of the Act?

(iii)Whether condition of advertisement can be allowed to beCassailed by the candidates who have participated in theprocess of selection but declared unsuccessful?

(iv)Whether in the matter of fresh appointment, reservationcan be said to be condition of service for making applicablethe provision of Section 73 of the Bihar Reorganization Act,2000?”

12. The Division Bench of the High Court found that 25% ofposts to be filled through the limited competitive examination would beby way of fresh appointment and as such, the appellant could not relyupon the provisions of Sections 72 and 73 of the Act. Since the appellanthad failed to comply with condition No.13 of the Advertisement andsince there was no certificate issued by any of the competent authoritiesthat he belonged to ST (Gond) category in State of Jharkhand, theappellant could not be said to be belonging to the reserved category ofSTs for the purposes of limited departmental examination.

13. The correctness of the decision is presently under challenge.

14. Mr. Manoj Tandon, learned counsel appearing for the appellantsubmits inter alia that :-

(a)The ST known as Gond in the then undivided State of Bihar,after reorganization is part of the Constitution [ScheduledTribes] Order, 1950 at Sl. No.10 in respect of newly carvedState of Bihar as well as at Sl. No.11 in respect of State ofJharkhand.

(b)The appellant having been in the service of the thenundivided State of Bihar and his services having been

Aallocated to State of Jharkhand, is entitled to the benefitsand protection under Sections 72 and 73 of the Act.

(c)The status as person belonging to ST category wouldentitle him to claim benefit of reservation in promotion evenwith respect to service under State of Jharkhand afterBreorganization.

d)The nature of limited departmental examination is nothingbut accelerated promotion; in that as against the regularmode of promotion those who are competent and are foundmeritorious in the limited departmental examination, can bepromoted even if they are comparatively juniors.

e)A limited departmental examination can be taken only bythose who are presently in service and is not available forany direct recruitment from open market.

f)Reliance is placed on the decision of this Court in PankajDKumar v. State of Jharkhand[2].

15. Mr. Arunabh Chowdhury, learned Additional Advocate Generalappearing for State of Jharkhand and Mr. Himanshu Shekhar, learnedAdvocate appearing for the Commission have reiterated the submissionswhich were accepted in the decision under challenge. It is submittedEthat condition No.13 was an integral part of the process of selection andnon-compliance of said condition would disentitle candidate fromclaiming status as one belonging to ST in the State. To pointed querywhether the appellant would be entitled to claim that he belonged to saidreserved category if regular promotion was in issue, the learned counselFfairly accepted that he would certainly be so entitled.

16. In Pankaj Kumar,[2]the father of the appellant belonged toDistrict Patna (which, after reorganization, is now part of successorState of Bihar) but resided in Hazaribagh (which is now part of State ofJharkhand) where the appellant was born. The appellant was appointedas Assistant Teacher on 21.12.1999 and after reorganization, his serviceGwas allocated to State of Jharkhand. While serving as teacher, heappeared as member of SC category in the Combined Civil ServicesExamination, and though his name appeared at Sl. No.5 against 17vacancies reserved for SC Category, he was not selected on the ground

that he being permanent resident of Patna, he would be treated as amigrant in State of Jharkhand.

In this factual backdrop, the question that arose for considerationwas as under:

“46. The question that emerges for our consideration in the instantappeals is whether person, who has been resident of the Stateof Bihar and where the Constitution (Scheduled Castes)/(Scheduled Tribes) Order, 1950 identifying castes/ tribes is issuedextending the benefit to members of SC/ST throughout theintegrated State of Bihar which was later on bifurcated by virtueof statutory instrument, i.e., the Act, 2000, into two successorStates (State of Bihar and State of Jharkhand) with their rightsand privileges to the extent being protected by legislative enactmentunder the provisions of the Act 2000, could still be considered tobe migrant to the successor State of Jharkhand depriving themof their privileges and benefits to which the incumbent or theirlineal descendants has availed from the very inception of thePresidential Order 1950 in the integrated State of Bihar.”

Thereafter, the effect of Sections 73 and 74 of the Act wasconsidered and it was observed:

“49. The scheme of the Act 2000 postulates that employees whoare working immediately on or before the appointed date, in theState of Bihar, has either domicile of the districts that formed partof State of Jharkhand under Section 3 of the Act or opted orjoined being junior in their respective seniority, stands absorbed inthe successor State of Jharkhand and by virtue of statutoryinstrument, their service conditions stand protected and becameentitled to claim privileges and benefits to which the members ofscheduled castes/ scheduled tribes/ OBC are entitled for in termsof the Presidential Order 1950 as amended from time to time.

50. This Court, while examining almost similar nature ofcontroversy in Sudhakar Vithal Kumbhare v. State ofMaharashtra & Ors., 2004 (9) SCC 481 held as under:-

“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 and

Agrowth in several States. They require protective preferences,facilities and benefits inter alia in the form of reservation, so as toenable 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 MadhyaBPradesh as well as in the State of Maharashtra having their originin 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 IndiaCshould be given an effective or proper meaning so as to excludethe possibility that tribe which has been included as ScheduledTribe 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 theDsame tribe belonging to the same region which has been bifurcated,the 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 regionEwould continue to get the same benefits despite bifurcation thereofin terms of the States Reorganization Act. With view to find outas 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 ofFtime belonged to the same region and under the Constitution(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 totallyGdifferent and the State of Maharashtra even after reorganisationmight have agreed for inclusion of the said tribe Halba/Halbi as aScheduled 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 District

Chhindwara region which is part of State of Madhya Pradesh, apart of the district of Chhindwara place Chandrapur, on States’reorganization, came to the existing State of Maharashtra fromthe State of Madhya Pradesh, it was not considered case ofmigration from State of Madhya Pradesh to State of Maharashtra.But the State of Maharashtra being the existing State and degreeof disadvantages of various elements may be different on theobjection being raised by the State of Maharashtra City Boardwhere 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 andAnother vs. Addl. Commissioner, Tribal Development and Others,1994 (6) SCC 241.

52. There is fundamental dichotomy in the submissions made bythe counsel for the State of Jharkhand that the existing serviceconditions including benefit of reservation in the promotional cadrepost shall not be varied to his disadvantage but he shall beconsidered to be migrant to the State of Jharkhand whileparticipating in public employment to compete in open/generalcategory and asked to seek the benefit of reservation in theneighboring State of Bihar, to hold different status in his parentState of Jharkhand after he became member of service of theState of Jharkhand, serving for sufficient long time on and afterthe appointed day, i.e. 15th November, 2000 in the State isunsustainable in law and in contravention to the scheme of theAct 2000.

53. It will be highly unfair and pernicious to their interest if thebenefits of reservation with privileges and benefits flowing thereofare not being protected in the State of Jharkhand after he isabsorbed 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.

54. The collective readings of the provisions of the Act, 2000makes it apparent that such of the persons whose place of origin/domicile on or before the appointed day was of the State of Bihar

now falling within the districts/regions which form successorState, i.e., State of Jharkhand under Section 3 of the Act, 2000became ordinary resident of the State of Jharkhand, at the sametime, so far as the employees who were in public employment inthe State of Bihar on or before the appointed day, i.e. 15thNovember, 2000 under the Act 2000, apart from those who aredomicile of either of the district which became part of the State ofJharkhand, such of the employees who have submitted their optionor employees who are junior in the cadre of their seniority as perthe policy of the Government of India of which reference hasbeen made, either voluntarily or involuntarily call upon to servethe State of Jharkhand, their existing service conditions shall notbe varied to their disadvantage and stands protected by virtue ofSection 73 of the Act, 2000.

55. In our considered view, such of the employees who aremembers of the SC/ST/OBC whose caste/tribe has been notifiedby an amendment to the Constitution(Scheduled Castes)/(Scheduled Tribes) Order 1950 under Vth and VIth Schedule toSections 23 and 24 of the Act 2000 or by the separate notificationfor members of other backward class category, benefit ofreservation including privileges and benefits flowing thereof, shallremain protected by virtue of Section 73 of the Act 2000 for allpractical purposes which can be claimed (including by their wards)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 ofJharkhand, but will not be entitled to claim benefit of reservationsimultaneously in both the successor States and those who aremembers of the reserved category and are resident of thesuccessor State of Bihar, while participating in open selection inState of Jharkhand shall be treated to be migrants and it will beopen to participate in general category without claiming the benefitof reservation and vice-versa.

57. We are of the view that the present appellant Pankaj Kumarin Civil Appeal @ SLP (Civil) No.13473 of 2020, being servingemployee in the State of Jharkhand by virtue of Section 73 of theAct 2000, would be entitled to claim the benefit of reservationincluding the privileges and benefits admissible to the members of

Scheduled Caste category in the State of Jharkhand for all practicalpurposes including participation in open competition seeking publicemployment.”

17. As has been clarified in the decision in Pankaj Kumar[2], suchof the employees who opt for service under successor State afterreorganization, their existing service conditions would not be varied totheir disadvantage and would stand protected by virtue of Section 73 ofthe Act. Further, subject to the condition that such person would not beentitled to claim the benefit of reservation simultaneously in both thesuccessor States, such employees would be entitled to claim not only thebenefit of reservation in the service of the successor State to which theyhad opted and were allocated, but they would also be entitled to participatein any subsequent open competition with the benefit of reservation.

18. It must be stated that the decision in Pankaj Kumar[2] wasrendered by this Court on 19.8.2021, while the judgment presently underchallenge was delivered by the High Court on 12.5.2021. The High Courtthus did not have the benefit of the decision of this Court. The lawhaving been settled in Pankaj Kumar[2], the judgment under appeal hasto be read in light of the decision in Pankaj Kumar[2]. It would thereforebe immaterial whether or not the nature of limited departmentalexamination is to be taken as direct recruitment, as found by the DivisionBench of the High Court.

19. However, in order to have clarity in the matter, it must benoted that the benefit of reservation was claimed in the limiteddepartmental examination for the purpose of promotion to the next higherlevel. It must therefore be relevant to consider the nature of such limiteddepartmental examination and what it seeks to achieve as against directrecruitment from the open market, where person who was not part ofthe concerned service, gets chance to offer his candidature and enterthe service under State for the first time. Limited departmentalexamination affords an opportunity for persons who are already in serviceat lower level to have accelerated promotion depending upon the meritof such candidates. In All India Judges’ Association & Ors. v. Unionof India and Ors.[3], the issue was considered in paragraphs 27 and 28as under:

A“27. Another question which falls for consideration is the methodof recruitment to the posts in the cadre of Higher Judicial Servicei.e. District Judges and Additional District Judges. At the presentmoment, there are two sources for recruitment to the HigherJudicial Service, namely, by promotion from amongst the membersof the Subordinate Judicial Service and by direct recruitment. TheBsubordinate judiciary is the foundation of the edifice of the judicialsystem. It is, therefore, imperative, like any other foundation, thatit should become as strong as possible. The weight on the judicialsystem essentially rests on the subordinate judiciary. While wehave accepted the recommendation of the Shetty CommissionCwhich will result in the increase in the pay scales of the subordinatejudiciary, it is at the same time necessary that the judicial officers,hard-working as they are, become more efficient. It is imperativethat they keep abreast of knowledge of law and the latestpronouncements, and it is for this reason that the ShettyCommission has recommended the establishment of JudicialDAcademy, which is very necessary. At the same time, we are ofthe opinion that there has to be certain minimum standard,objectively adjudged, for officers who are to enter the HigherJudicial Service as Additional District Judges and District Judges.While we agree with the Shetty Commission that the recruitmentEto the Higher Judicial Service i.e. the District Judge cadre fromamongst the advocates should be 25 per cent and the process ofrecruitment is to be by competitive examination, both writtenand viva voce, we are of the opinion that there should be anobjective method of testing the suitability of the subordinate judicialofficers for promotion to the Higher Judicial Service. Furthermore,Fthere should also be an incentive amongst the relatively junior andother officers to improve and to compete with each other so as toexcel and get quicker promotion.In this way, we expect that thecalibre of the members of the Higher Judicial Service will furtherimprove. In order to achieve this, while the ratio of 75 per centGappointment by promotion and 25 per cent by direct recruitmentto the Higher Judicial Service is maintained, we are, however, ofthe opinion that there should be two methods as far as appointmentby promotion is concerned : 50 per cent of the total posts in theHigher Judicial Service must be filled by promotion on the basisof principle of merit-cum-seniority.For this purpose, the High

Courts should devise and evolve test in order to ascertain andexamine the legal knowledge of those candidates and to assesstheir continued efficiency with adequate knowledge of case-law.The remaining 25 per cent of the posts in the service shall befilled by promotion strictly on the basis of merit through the limiteddepartmental competitive examinationfor which the qualifyingservice as Civil Judge (Senior Division) should be not less thanfive years. The High Courts will have to frame rule in this regard.

28. As result of the aforesaid, to recapitulate, we direct thatrecruitment to the Higher Judicial Service i.e. the cadre of DistrictJudges will be:

(1)(a) 50 per cent by promotion from amongst the Civil Judges(Senior Division) on the basis of principle of merit-cum-seniorityand passing suitability test;

(b) 25 per cent by promotion strictly on the basis of merit throughlimited competitive examination of Civil Judges(Senior Division)having not less than five years’ qualifying service; and

(c) 25 per cent of the posts shall be filled by direct recruitmentfrom amongst the eligible advocates on the basis of the writtenand viva voce test conducted by respective High Courts.

(2) Appropriate rules shall be framed as above by the HighCourts as early as possible.”

(Emphasis added)

20. By very nature, the promotion to the next higher level is fromand amongst those who are at lower level in the service. The avenueof promotion is not available to persons from the open market, whichtalent is to be garnered through direct recruitment. The promotion as achannel to reach the higher level is only available to the persons alreadybelonging to the service. In normal circumstances, the promotion wouldgo by the concept of merit linked with seniority subject to suitability. Inorder to encourage meritorious candidates who may be comparativelyjunior in service, window of opportunity is opened through limiteddepartmental examination. Those who pass the examination are entitledto have an accelerated promotion. This process does not change thecharacter of movement to the higher post and it continues to be apromotional channel. The Single Judge of the High Court was therefore

Aright in allowing the writ petition. The underlined portion from the orderpassed by the Single Judge shows that the matter was considered in thecorrect perspective. The Division Bench of the High Court was notjustified in concluding that limited departmental examination was nothingbut direct recruitment from the open market.

B21. Before we part, we must deal with some of the observationsin Pankaj Kumar[2].

22. In the instant case and in the case of Pankaj Kumar,[2] theappellants belonged to particular community or tribe which was specifiedin the erstwhile State of Bihar as Scheduled Castes/ Scheduled TribesCwhen they entered public service in the erstwhile State of Bihar. Theappellants in both the cases were allocated to the service under State ofJharkhand though they belonged to the areas which after re-organizationare now part of the successor State of Bihar. By virtue of Sections 73and 74 of the Act, they could certainly claim benefit in the service underthe newly carved State of Jharkhand. On the strength of the view takenDin Pankaj Kumar[2], the entitlement in fresh service in State ofJharkhand as well as in accordance with the view taken by us in theinstant case, the entitlement in the limited departmental examination inState of Jharkhand is definitely made out. The basis for their entitlementis primarily because of Sections 73 and 74 of the Act. It is quite possibleEthat the progeny of such persons may have stayed back or may laterdecide to go back to their roots, that is to say, to the area which now fallsin the newly carved State of Bihar; and since their lineage is from thatarea and the State, they may contend that they are entitled to benefits ofreservation in the newly carved State of Bihar in relation to which State,the community that they belong, is Scheduled Caste/ Scheduled Tribe.FParagraph 55 of the decision in Pankaj Kumar[2] is capable of beingread as conferring entitlement on the wards or the progeny of theappellants in State of Jharkhand alone where in contradistinction to theirlineage, they can claim to have connection only through their parent(s)and the effect of the provisions of the Act.G

23. It must be stated that the entitlement of the progeny or thewards of the appellant in State of Jharkhand had not strictly arisen forconsideration in Pankaj Kumar[2]. In our view, the issue, if any, can andmust be gone into in detail in an appropriate case.

24. We, therefore, allow this appeal and set aside the judgmentHand order passed by the Division Bench of the High Court and restore

the judgment and order dated 22[nd] September 2017 passed by the SingleJudge of the High Court. No costs.

S. RAVINDRA BHAT, J.

1. I have gone through the judgment of Justice U.U. Lalit, andagree with his reasoning and conclusions. In addition, there are someother reasons, which I feel are necessary, and need to be noticed, in thecontext of this case. I proceed with those reasons, hereafter.

2. The framers of the Constitution were acutely aware of theexisting divide within Indian society by reason of caste and other factors.Millennia old layered caste realities which had resulted in generations ofexploitation and oppression of sections of society was sought to be undonethrough the Constitution, which we gave onto ourselves. To achieve thisend: of equalizing society, the Indian Constitution makes elaborateprovisions – not merely by declaring the right to equality, which is soessential in every democracy – but in also making provisions ensuringthat the erstwhile oppressed classes or sections of citizens are givenbenefits which would ensure their full and effective participation in societyand governance. Apart from making special provisions under Articles15 and 16, the methodology for identification of Scheduled Castes andScheduled Tribes has been provided for the purpose through Articles341 and 342 of the Constitution. Furthermore, these provisions also directthat any change or amendment to the Presidential Orders (initially issuedin the year 1950) can be only through future Parliamentary enactmentsand not by any other mode, thereby ensuring that local influences andprejudices within states do not prevail. The special protections toScheduled Castes and Scheduled Tribes is also manifest in the protectionof the areas in which they inhabit, such as Fifth and Sixth ScheduledAreas.

3. While this is so, it is also reality that ours is not nation ofindestructible states - it is often described as an indestructible union ofdestructible states. This means that as and when demands are made bysections of society, which feel the need for separate states due to localaspirations, Parliament, in consultation with the concerned State throughtheir elected assemblies, effects reorganisation of states by law. Thisreorganisation inevitably has the effect of disrupting pre-existingarrangements. In this litigation we are concerned with the disruption

Acaused with respect to the service benefits of existing employees andofficials in the erstwhile state of Bihar, which was bifurcated by theBihar Reorganisation Act in 2000, and its effect on the respondent.

4. The Constitution uses the expression “in relation to”, in bothArticles 341 and 342, while prescribing the mode for determination ofBScheduled Castes and Scheduled Tribes, for the purposes of theConstitution. Quite naturally, the Constitution makers decided that theState or Union Territory ought to be the unit in relation to which thebackwardness of the relative backwardness of communities is to bedetermined for notifying one or some of them as Scheduled Castes andScheduled Tribes. In other words, the determination as to whether aCcommunity can be notified as Scheduled Caste or Tribe, has to be withrespect to the territory. From the manner in which the Presidential Order(both in respect to Scheduled Castes and Scheduled Tribes, for statesand union territories) issued in 1950 has notified communities, it is evidentthat an elaborate and extensive exercise was undertaken. In someDinstances, communities or castes have been notified as Scheduled Castesor Scheduled Tribes, only in respect of certain districts in state or evenin relation to certain taluks and in all others, it is in relation to entirestates.

5. Interestingly, the present case highlights an issue which conflatesEtwo issues: on the one hand, the determination of community as aScheduled Caste or Scheduled Tribe in relation to certain specifiedarea or territory, given that the area or territory has been determined bythe Constitution to be unit of the State or Union territory; the other isthe reality of political divisions of states through bifurcation orreorganisation (as the Parliament has chosen to express it), which hasFbeen occasioned number of times. What then happens in the event ofa reorganisation? The members of the caste or community that isdesignated as Scheduled Caste living within the larger area of the erstwhileunited state, would face disruption in the event of bifurcations, at thetime of reorganisation. Where reorganization enactments provide thatGthe caste or community concerned would continue to be notified casteor community in relation to both the states, there would be minimaldisruption. However, where caste or community in an undivided state,upon bifurcations ceases to be notified as Scheduled Caste in relationto one of the bifurcated states, within which the concerned member ofthe community lives or works, problems would inevitably arise.H

6. As has been pointed out, by the judgment of Justice Lalit, thisproblem was addressed in Pankaj Kumar v. State of Jharkhand &Ors.[1]where the court discussed it in the following terms:

“52. There is fundamental dichotomy in the submissionsmade by the counsel for the State of Jharkhand that theexisting service conditions including benefit of reservationin the promotional cadre post shall not be varied to hisdisadvantage but he shall be considered to be migrant tothe State of Jharkhand while participating in publicemployment to compete in open/general category and askedto seek the benefit of reservation in the neighbouring State ofBihar, to hold different status in his parent State of Jharkhandafter he became member of service of the State of Jharkhand,serving for sufficient long time on and after the appointedday, i.e. 15th 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 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 thatclearly postulates not only to protect the existing serviceconditions but the benefit of reservation and privileges whichhe was enjoying on or before the appointed day, i.e. 15thNovember, 2000 in the State of Bihar not to be varied to hisdisadvantage after he became member of service in the Stateof Jharkhand.”

Earlier, this court had to consider this issue in Sudhakar VithalKumbhare v. State of Maharashtra & Ors.[2]where the problem wasflagged, and the solution left to be worked out in the following manner:

“4. It is no doubt true that Scheduled Tribe notified in oneState may not be given the benefits therefore in another Statehaving regard to the plain expression “in relation to that State”in Article 342 of the Constitution. [See Action Committee onIssue of Caste Certificate to Scheduled Castes and ScheduledTribes in the State of Maharashtra and Anr. v. Union of India

1 2021 SCCOnline (SC) 616

2 2003 Supp (5) SCR 746

ABC

& Anr. (1994) Supp (1) SCR 714 and U.P. Public ServiceCommission, Allahabad v. Sanjay Kumar Singh 2003 (7) SCC657.

5. But the question which arises for consideration hereinappears to have not been raised in any other case. It is not indispute that the Scheduled Castes and Scheduled Tribes havesuffered disadvantages and denied facilities for developmentand growth in several States. They are required protectivepreferences, facilities and benefits inter alia in the form ofreservation, so as to enable them to compete on equal termswith the more advantageous and developed sections of thecommunity. The question is as to whether the appellant beinga Scheduled Tribe known as Halba/Halbi which standsrecognized both in the State of Madhya Pradesh as well as inthe State of Maharashtra having their origin in theChhindwara region, part of which, on States’ reorganizationhas come to State of Maharashtra, was entitled to the benefit

of reservation? It is one thing to say that the expression “inrelation to that State” occurring in Article 342 of theConstitution of India should be given an effective or propermeaning so as to exclude the possibility that tribe whichhas been included as Scheduled Tribe in one State afterconsultation with the Governor for the purpose of theConstitution may not get the same benefit in other State whoseGovernor has not been consulted; but it is another thing tosay that when an area dominated by members of the sametribe belonging to the same region which has been bifurcated,

the members would not continue to ge the same benefit whenthe said tribe is recognized in both the States. In other words,the question that is required to be posed and answered wouldbe as to whether the members of the Scheduled Tribe belongingto one region would continue to get the same benefits despitebifurcation thereof in terms of States’ Reorganization Act. Witha view to find out as to whether any particular area of thecountry was required to be given protection is matter whichrequires detailed investigation having regard to the fact thatboth Pandhurna in the District of Chhindwara and the partof area of Chandrapur at one point of time belonged to thesame region and under the Constitutional Scheduled Tribe

Order 1950 as it originally stood the Tribe Halba/Halbi ofthat region may be given the same protection. In case ofthis nature the degree of disadvantages of various elementswhich constitute the input for specification may not be totallydifferent and the State of Maharashtra even afterreorganization might have agreed for inclusion of the saidTribe Halba/Halbi as Scheduled Tribe in the State ofMaharashtra having regard to the said fact in mind.”

7. In another decision, State of Jharkhand v. Bhadey Munda[3]the argument was that upon reorganization, the chances of promotion inthe newly reorganized state were less, and consequently, the officialshould be protected. This court negatived the argument, holding as follows:

“All that was submitted (for the first time and that too orally)is that the reservation percentage as it existed in the State ofBihar for scheduled caste and scheduled tribe candidates hadbeen varied in the State of Jharkhand, thereby reducing thepossibility of their promotion”.

This court followed the older decision in State of Mysore v. G.B.Purohit[4]which held that changes in chances of promotion do not amountto adverse change in service conditions.

8. In my opinion, given that determination of whether communityor caste has to be notified as Scheduled Caste, or Tribe, is in relation toa state or union territory (i.e., it is primarily people-centric having regardto the existing geo-political unit), and when determination is so madethat particular community belongs to such state, in the event of re-organization, then, Parliament has duty to provide clarity, by way ofexpress provision. The settled law, in respect of persons going from onestate to another is that the status of “belonging to” caste or tribe inrelation to one state would not apply once member of that communitygoes to another, (per Marri Chandra Shekhar Rao v. Dean Seth GSMedical College[5]and Action Committee on Issue of Caste Certificateto Scheduled Castes and Scheduled Tribes in the State ofMaharashtra and Anr. v. Union of India & Anr.[6]). In that sense, thechoice which an individual - who belonged to the erstwhile unified state

3 (2014)10 SCC 3984 (1967) 1 SLR 753

5 1990 (2) SCR 843

6 (1994) Supp (1) SCR 714

A- but who has to agree, for whatever reason, to settle in the bifurcatedstate, in place or region where he originally did not reside, is involuntary.It is precisely to cater to such situations, that provision was madeexpressly protecting benefits which such individuals had hitherto beenenjoying in the erstwhile unified states, such as Section 73 of the BiharRe-organization Act, 2000, which Pankaj Kumar (supra) dealt with.BSuch provisions were made in the past, and more recently, as well.[7]

9. Another instance where Parliament has accommodateddisruptions which are likely to impact members of Scheduled Caste andScheduled Tribe communities, is in the event of acquisition of their lands– especially if those are located as described in the Fifth Schedule (toCthe Constitution of India). The Right to Fair Compensation andTransparency in Land Acquisition, Rehabilitation and Resettlement Act,2013, by Section 42 provides as follows:

“42. Reservation and other benefits.–(1) All benefits, includingthe reservation benefits available to the Scheduled Tribes andDthe Scheduled Castes in the affected areas shall continue inthe resettlement area.

(2) Whenever the affected families belonging to the ScheduledTribes who are residing in the Scheduled Areas referred to inthe Fifth Schedule or the tribal areas referred to in the SixthESchedule to the Constitution are relocated outside those areas,than, all the statutory safeguards, entitlements and benefitsbeing enjoyed by them under this Act shall be extended to thearea to which they are resettled regardless of whether theresettlment area is Scheduled Area referred to in the saidFFifth Schedule, or tribal area referred to in the said SixthSchedule, or not.(3) Where the community rights have been settled under theprovisions of the Scheduled Tribes and Other TraditionalForest Dwellers (Recognition of Forest Rights) Act, 2006 (2Gof 2007), the same shall be quantified in monetary amountand be paid to the individual concerned who has beendisplaced due to the acquisition of land in proportion withhis share in such community rights.”

7 Section 115 (7), States Re-organization Act, 1956; Sections 69-70 Madhya PradeshRe-organization Act, 2000; Sections 74-75 Uttar Pradesh Re-organization Act, 2000;HSection 78, Andhra Pradesh Re-organization Act, 2014

10. In my considered opinion, given that states reorganizationsoccur as consequence of political demands, or as an articulation ofregional aspirations, there is no agency of the individual (i.e., membersof Scheduled Caste or Scheduled Tribe communities) in such eventuality.This situation is radically different from one, where member of suchcommunity, voluntarily seeks opportunities outside her or his state- inwhich case, the rule in Marri Chandra Shekhar Rao (supra) wouldapply. There is, consequently, an obligation on the part of Parliament, toprovide clarity about the kind of protection, regarding the status of suchindividuals forced to chose one among the newly reorganized states, andensure that they are not worse off as result of reorganization.A differentkind of involuntary movement was also contemplated in Marri ChandraShekhar Rao (supra), where this court had in fact commendedParliament (or the concerned state legislatures) to make provisions forthe future prospects of wards of members of Scheduled Castes orScheduled Tribes who because of their conditions of public employment,have to go from one state to another. Furthermore, the duty to provideclarity and protection, generally speaking has to be consistent - i.e., inthe case of one states’ reorganization, the protection should not be greaterthan in the case of reorganization of another state. That would defeatthe command of Articles 14 and 15 (1) (i.e., in the latter case, there canpossibly be discrimination on the ground of place of birth). In my opinion,this duty stems from co-joint reading of Part I (Articles 1 to 4), Articles14, 15(1), 341, and 342 of the Constitution, and the overarching concernthat the individual should not be worse off, due to disruption not of her orhis making. The duty of Parliament in such cases, is Constitutionalobligation, to ensure that no one individual or group is disadvantaged.

11. I am in agreement with Justice Lalit, that the observations inPankaj Kumar (supra) which went beyond what was required to bedecided, cannot be considered as its ratio. There can be myriad situationswhich may arise directly for decision- such as for instance, where casteA is not designated as Scheduled Caste in one of the newly reorganizedstates, where the individual is forced to locate; or where the children ofthe concerned individual were studying in state A, and the parent was instate (and continued to be so) and in the former state, the concernedcaste is not notified as scheduled caste-or, even that the children arenot treated as “belonging to” that state, etc. Each such situation needs tobe examined, having regard to the legal regime in question. So far, theinstances of decided cases, have inevitably been in the context of

Areservations in public employment (Article 16). However, there mayarise, possibly, in the future, other kinds of disputes, which this courtshould be careful not to pre-judge without careful scrutiny.

12. I agree with the observations and conclusions of Justice Lalit,additionally, also for the reasons mentioned above.

Ankit Gyan and Amarendra Kumar

Appeal allowed.

(Assisted by : Iram Jan, LCRA)