# AKHILESH PRASAD v. JHARKHAND PUBLIC SERVICE COMMISSION & ORS

- **Citation:** [2022] 19 S.C.R. 400
- **Court:** Supreme Court of India
- **Decided:** 2022-04-26
- **Case number:** Civil Appeal No. 3180 of 2022
- **Bench:** Uday Umesh Lalit, S. Ravindra Bhat, Pamidighantam Sri Narasimha
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/akhilesh-prasad-v-jharkhand-public-service-commission-ors-36233
- **Pages:** 27

## Headnote

Service Law - Bihar Reorganisation Act, 2000 - Ss. 73 and
74 - Services after reorganisation of State - Appellant cleared the
Cooperative Development Officers exam held in 1994 conducted
by the then Bihar Public Service Commission under the Scheduled
Tribe category - The State of Bihar was bifurcated in successor
States viz. State of Bihar and newly formed State of Jharkhand, as
a result of Bihar Reorganisation Act, 2000 - After bifurcation of
the State of Bihar, Appellant's service was allocated to the successor
State of Jharkhand and since then he had been in the service of
State of Jharkhand - An advertisement was issued for filling up the
posts of Deputy Collectors through limited departmental
examination, the benefit of reservation according to which would
be extended to only those who submit the appropriate caste
certificate from the Sub-Divisional officer posted in State of
Jharkhand - Appellant even though secured more marks as against
the cut-off for ST category in the departmental exam was declared
unsuccessful - The Appellant challenged his non-selection by filing
a Writ Petition which was allowed by the Single Judge of the High
Court of Jharkhand - Single Judge of the High Court held that the
petitioner was already working in the co-operative Department as
a reserved category candidate - He carried his reserved category
with him after bifurcation also - Thus, the State acknowledged the
petitioner as Scheduled Tribe category while he is working in Cooperative Department under the State, but not treating him as
reserved category i.e. scheduled tribe for the purpose of limited
examination, is not acceptable neither his tenable in the eyes of law
- However, the Division Bench of the High Court held that since
the appellant had failed to comply with condition No.13 of the
Advertisement and since there was no certificate issued by any of
the competent authorities that he belonged to ST (Gond) category
in State of Jharkhand, the appellant could not be said to be
[2022] 19 S.C.R. 400
400
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belonging to the reserved category of STs for the purposes of limited
departmental examination - On appeal, held: Per Uday Umesh
Lalit, J. (for himself and Pamidighantam Sri Narasimha, J.)
Supreme Court in Pankaj Kumar's case held the employees who
opt for service under a successor State after reorganization, their
existing service conditions would not be varied to their disadvantage
and would stand protected by virtue of Section 73 of the Act - Subject
to the condition that such person would not be entitled to claim the
benefit of reservation simultaneously in both the successor States,
such employees would be entitled to claim not only the benefit of
reservation in the service of the successor State to which they had
opted and were allocated, but they would also be entitled to
participate in any subsequent open competition with the benefit of
reservation - Single Judge of the High Court was therefore right in
allowing the writ petition - Division Bench of the High Court was
not justified in concluding that limited departmental examination
was nothing but direct recruitment from the open market - Per
Ravindra Bhat, J. (concurring): There is an obligation on the part
of Parliament, to provide clarity about the kind of protection,
regarding the status of such individuals forced to chose one among
the newly reorganized states, and ensure that they are not worse off
as a result of reorganization.
Allowing the appeal, the Court
HELD:
Per Uday Umesh Lalit, J. [For himself and Pamidighantam
Sri Narasimha, J.]
1. The employees who opt for service under a successor
State after reorganization, their existing service conditions would
not be varied to their disadvantage and would stand protected by
virtue of Section 73 of the Act. Further, subject to the condition
that such person would not be entitled to claim the benefit of
reservation simultaneously in both the successor States, such
employees would be entitled to claim not on

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SUPREME COURT REPORTS
[2022] 19 S.C.R.
AKHILESH PRASAD
v.
JHARKHAND PUBLIC SERVICE COMMISSION & ORS.
(Civil Appeal No. 3180 of 2022)
APRIL 26, 2022
[UDAY UMESH LALIT, S. RAVINDRA BHAT AND
PAMIDIGHANTAM SRI NARASIMHA, JJ.]
Service Law - Bihar Reorganisation Act, 2000 - Ss. 73 and
74 - Services after reorganisation of State - Appellant cleared the
Cooperative Development Officers exam held in 1994 conducted
by the then Bihar Public Service Commission under the Scheduled
Tribe category - The State of Bihar was bifurcated in successor
States viz. State of Bihar and newly formed State of Jharkhand, as
a result of Bihar Reorganisation Act, 2000 - After bifurcation of
the State of Bihar, Appellant's service was allocated to the successor
State of Jharkhand and since then he had been in the service of
State of Jharkhand - An advertisement was issued for filling up the
posts of Deputy Collectors through limited departmental
examination, the benefit of reservation according to which would
be extended to only those who submit the appropriate caste
certificate from the Sub-Divisional officer posted in State of
Jharkhand - Appellant even though secured more marks as against
the cut-off for ST category in the departmental exam was declared
unsuccessful - The Appellant challenged his non-selection by filing
a Writ Petition which was allowed by the Single Judge of the High
Court of Jharkhand - Single Judge of the High Court held that the
petitioner was already working in the co-operative Department as
a reserved category candidate - He carried his reserved category
with him after bifurcation also - Thus, the State acknowledged the
petitioner as Scheduled Tribe category while he is working in Cooperative Department under the State, but not treating him as
reserved category i.e. scheduled tribe for the purpose of limited
examination, is not acceptable neither his tenable in the eyes of law
- However, the Division Bench of the High Court held that since
the appellant had failed to comply with condition No.13 of the
Advertisement and since there was no certificate issued by any of
the competent authorities that he belonged to ST (Gond) category
in State of Jharkhand, the appellant could not be said to be
[2022] 19 S.C.R. 400
400
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belonging to the reserved category of STs for the purposes of limited
departmental examination - On appeal, held: Per Uday Umesh
Lalit, J. (for himself and Pamidighantam Sri Narasimha, J.)
Supreme Court in Pankaj Kumar's case held the employees who
opt for service under a successor State after reorganization, their
existing service conditions would not be varied to their disadvantage
and would stand protected by virtue of Section 73 of the Act - Subject
to the condition that such person would not be entitled to claim the
benefit of reservation simultaneously in both the successor States,
such employees would be entitled to claim not only the benefit of
reservation in the service of the successor State to which they had
opted and were allocated, but they would also be entitled to
participate in any subsequent open competition with the benefit of
reservation - Single Judge of the High Court was therefore right in
allowing the writ petition - Division Bench of the High Court was
not justified in concluding that limited departmental examination
was nothing but direct recruitment from the open market - Per
Ravindra Bhat, J. (concurring): There is an obligation on the part
of Parliament, to provide clarity about the kind of protection,
regarding the status of such individuals forced to chose one among
the newly reorganized states, and ensure that they are not worse off
as a result of reorganization.
Allowing the appeal, the Court
HELD:
Per Uday Umesh Lalit, J. [For himself and Pamidighantam
Sri Narasimha, J.]
1. The employees who opt for service under a successor
State after reorganization, their existing service conditions would
not be varied to their disadvantage and would stand protected by
virtue of Section 73 of the Act. Further, subject to the condition
that such person would not be entitled to claim the benefit of
reservation simultaneously in both the successor States, such
employees would be entitled to claim not only the benefit of
reservation in the service of the successor State to which they
had opted and were allocated, but they would also be entitled to
participate in any subsequent open competition with the benefit
of reservation. [Para 17][415-B-C]
AKHILESH PRASAD v. JHARKHAND PUBLIC SERVICE
COMMISSION & ORS.
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2. The decision in Pankaj Kumar, was rendered by this
Court on 19.8.2021, while the judgment presently under challenge
was delivered by the High Court on 12.5.2021. The High Court
thus did not have the benefit of the decision of this Court. The
law having been settled in Pankaj Kumar, the judgment under
appeal has to be read in light of the decision in Pankaj Kumar. It
would therefore be immaterial whether or not the nature of limited
departmental examination is to be taken as direct recruitment,
as found by the Division Bench of the High Court. [Para 18][415D]
3. In order to encourage meritorious candidates who may
be comparatively junior in service, a window of opportunity is
opened through limited departmental examination. Those who
pass the examination are entitled to have an accelerated
promotion. This process does not change the character of
movement to the higher post and it continues to be a promotional
channel. The Single Judge of the High Court was therefore right
in allowing the writ petition. The underlined portion from the
order passed by the Single Judge shows that the matter was
considered in the correct perspective. The Division Bench of
the High Court was not justified in concluding that limited
departmental examination was nothing but direct recruitment
from the open market. Therefore, the appeal is allowed and
judgment and order passed by the Division Bench is set aside,
while the Order passed by the Single Judge of the High court is
restored. [Paras 20 & 24][417-G-H; 418-A-B, H]
Per S. RAVINDRA BHAT, J. (Concurring)
1. In my considered opinion, given that states
reorganizations occur as a consequence of political demands, or
as an articulation of regional aspirations, there is no agency of
the individual (i.e., members of Scheduled Caste or Scheduled
Tribe communities) in such eventuality. This situation is radically
different from one, where a member of such community,
voluntarily seeks opportunities outside her or his statein which
case, the rule in Marri Chandra Shekhar Rao would apply. There
is, consequently, an obligation on the part of Parliament, to provide
clarity about the kind of protection, regarding the status of such
individuals forced to chose one among the newly reorganized
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states, and ensure that they are not worse off as a result of
reorganization. A different kind of involuntary movement was also
contemplated in Marri Chandra Shekhar Rao, where this court
had in fact commended Parliament (or the concerned state
legislatures) to make provisions for the future 9 prospects of
wards of members of Scheduled Castes or Scheduled Tribes who
because of their conditions of public employment, have to go from
one state to another. Furthermore, the duty to provide clarity
and protection, generally speaking has to be consistent - i.e., in
the case of one states' reorganization, the protection should not
be greater than in the case of reorganization of another state.
That would defeat the command of Articles 14 and 15 (1) (i.e., in
the latter case, there can possibly be discrimination on the ground
of place of birth). In my opinion, this duty stems from a co-joint
reading of Part I (Articles 1 to 4), Articles 14, 15(1), 341, and 342
of the Constitution, and the overarching concern that the
individual should not be worse off, due to disruption not of her or
his making. The duty of Parliament in such cases, is a
Constitutional obligation, to ensure that no one individual or group
is 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 SCC
398 : [2014] 7 SCR 765; State of Mysore v. G. B. Purohit
(1967) 1 SLR 753; Kumari Madhuri Patil and Another
vs. Addl. Commissioner, Tribal Development and Others,
(1994) 6 SCC 241 : [1994] 3 Suppl. SCR 50; All India
Judges' 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 Caste
Certificate to Scheduled Castes and Scheduled Tribes
AKHILESH PRASAD v. JHARKHAND PUBLIC SERVICE
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in the State of Maharashtra and Anr. v. Union of India
& Anr. (1994) 5 SCC 244 : [1994] Supp SCR 714 -
referred to.
Case Law Reference
[2003] Supp 5 SCR 746
referred to
Para 16
[1994] Supp 1 SCR 71
referred to
Para 16
[1994] 3 Suppl. SCR 50
referred to
Para 16
[1994] Supp SCR 714
referred to
Para 6
[2014] 7 SCR 765
referred to
Para 7
[1990] 2 SCR 843
referred to
Para 8
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 3180
of 2022.
From the Judgment and Order dated 12.05.2021 of the High Court
of Jharkhand at Ranchi in L.P.A. No. 609 of 2017.
Manoj 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. Tulika
Mukherjee, Akshat Singh, Zain Khan, Sanjeev Singh, Rameshwar Prasad
Goyal, 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 dated
12.05.2021 passed by the Division Bench of High Court1 in LPA No.609
of 2017.
3. In the Graduate Level (Special) Competitive Examination held
in the year 1994 for filling up the posts of Cooperative Development
Officers, the then Bihar Public Service Commission vide letter dated
24.07.1995 recommended the name of the appellant, who was at serial
No. 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. for
himself and Pamidighantam Sri Narasimha, J. - and the other pronounced by S. Ravindra
Bhat, J.
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The claim that the appellant belonged to ST category (Gond) was
supported by a Certificate issued to that effect on 03.06.1995 by the
Scrutiny Officer, Sonpur (Saran) which place now falls in the newly
carved State of Bihar after reorganization of States. Later, appointment
letter dated 10.11.1995 was issued to the selected candidates including
the appellant. The appropriate entry in the service book shows the name
and category of the appellant as belonging to ST (Gond).
4. The then State of Bihar was bifurcated as a result of Bihar
Reorganization Act, 2000 [Act 30 of 2000] ('the Act', for short), which
came into force on 15.11.2000. The erstwhile State of Bihar was
bifurcated in successor States viz. State of Bihar comprising of 38 districts
and newly formed State of Jharkhand comprising of 18 districts. Sections
73 and 74 of the Act are as under:-
"73. Other provisions relating to services.-(1) Nothing in section
72 shall be deemed to affect on or after the appointed day the
operation of the provisions of Chapter I of Part XIV of the
Constitution in relation to determination of the conditions of service
of persons serving in connection with the affairs of the Union or
any State: Provided that the conditions of service applicable
immediately before the appointed day in the case of any person
deemed to have been allocated to the State of Bihar or to the
State of Jharkhand under section 72 shall not be varied to his
disadvantage except with the previous approval of the Central
Government. (2) All services prior to the appointed day rendered
by a person- (a) if he is deemed to have been allocated to any
State under section 72, shall be deemed to have been rendered in
connection with the affairs of that State; (b) if he is deemed to
have been allocated to the Union in connection with the
administration of the Jharkhand shall be deemed to have been
rendered in connection with the affairs of the Union, for the
purposes of the rules regulating his conditions of service. (3) The
provisions of section 72, shall not apply in relation to members of
any All-India Service.
74. Provisions as to continuance of officers in same post.-Every
person who, immediately before the appointed day is holding or
discharging the duties of any post or office in connection with the
affairs of the existing State of Bihar in any area which on that day
falls within any of the successor States shall continue to hold the
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same post or office in that successor State, and shall be deemed,
on and from that day, to have been duly appointed to the post or
office by the Government of, or any other appropriate authority
in, that successor State: Provided that nothing in this section shall
be deemed to prevent a competent authority, on and from the
appointed day, from passing in relation to such person any order
affecting the continuance in such post or office."
5. After reorganization of the States, the appellant's service was
allocated to the successor State of Jharkhand and since then the appellant
has been in the service of State of Jharkhand.
6. On 14.08.2008, a letter was issued by the Principal Secretary,
Government of Jharkhand to all the Secretaries of departments regarding
reservation in promotion in various categories of services under the State
of Jharkhand. Paragraphs 1 and 4 of the communication were as under:-
"Sir, with reference to above subject, I, as directed, have to submit
that, certain departments are expecting guidelines/counselling from
this department on the following point:
"The benefit of reservation in promotions should only be given
to the government servants of Scheduled Caste / Scheduled
Tribes if they are permanent residents of Jharkhand State, even
if 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 in
reserved categories prior to constitution of State and were posted
in Jharkhand State on the basis of division of cadre and they are
permanent residents of Bihar State, will be unaffected and they
shall be considered as government employees of reserved
category."
7. Advertisement No.9 of 2010 was issued by the Jharkhand Public
Service Commission ('the Commission', for short) for filling up the posts
of Deputy Collectors through limited departmental examination. Said
Advertisement issued on 09.10.2010, however, prescribed that the benefit
of reservation would be extended only to those who submit the
appropriate caste Certificate from the Sub-Divisional Officer posted in
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State of Jharkhand. The appellant having offered his candidature for the
limited departmental examination, the same was forwarded by the office
of the Registrar, Cooperative Societies, Jharkhand to the Commission.
8. In the results of the examination declared on 04.05.2013, the
appellant was declared unsuccessful though he had secured 123.68 marks
as 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 the
High Court by his judgment and order dated 22.09.2017 with following
observations:-
"8. The aforesaid provision makes it abundantly clear that so far
as the limited examination of the State of Jharkhand is concerned,
the benefit of reservation may be extended to such candidates
also, who are born on the reserved category post under the unified
State of Bihar. The appointment to the post of Deputy collector
may be a fresh appointment, but the process of the said appointment
has to be seen. This examination is not a general open competitive
examination rather it is open for in service candidates of
Government of Jharkhand only. Thus, the persons who are not
employed under the State of Jharkhand, are not entitled to appear
in the said examination. That means only a Government employee
is entitled to appear in the said examination. The said employee, if
succeeds in the examination and is appointed on the post of Deputy
Collector, his past services with the State are also counted for all
purposes. Thus, it is in continuation of his earlier service. In the
case in hand, the petitioner was already working in the co-operative
Department as a reserved category candidate and thereafter by
virtue of his employment in the Cooperative Department under
the State of Jharkhand, he qualified to appear in the examination.
Admittedly he is a reserved category Scheduled tribe candidate
and after bifurcation of the State he was allocated the Jharkhand
cadre. He carried his reserved category with him after bifurcation
also. Thus, the Resolution number 4722 dated 14.08.2008 applies
to the Petitioner. The State acknowledges the petitioner as
Scheduled Tribe category while he is working in Co-operative
Department under the State, but not treating him as reserved
category i.e. scheduled tribe for the purpose of limited examination,
is not acceptable to this Court neither his tenable in the eyes of
AKHILESH PRASAD v. JHARKHAND PUBLIC SERVICE
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law. The appointed cannot be said to be a fresh appointment. The
petitioner, after reorganization of the State, was allocated the
Jharkhand State cadre as a Scheduled Tribe candidate. Thus, his
status as Scheduled Tribe candidate for the purpose of service
has to be maintained. Thus, the claim of the Respondents that the
Petitioner cannot be treated as a scheduled tribe candidate is not
tenable in the eyes of law. Similar view has been reiterated by
this Court in W.P. (s)No.488 of 2013. The reliance has been placed
by the Respondents on the judgment delivered by this Court in
Division Bench is of no help to them as they were on different
ground and the present case is not a case of submission of
certificate after the cut-off date.
9. As a cumulative effect of the aforesaid rules, guidelines and
judicial pronouncements, I hereby direct the respondent - JPSC
to consider the case of the petitioner for appointment on the post
of Deputy Collector, pursuant to the Advertisement No. 09/10, as
a Reserved category (scheduled tribe). The respondents are
directed to consider the candidature of the petitioner on the post
of Deputy Collector, if he is found to be within consideration zone
on the basis of marks obtained by him vis-a-vis other candidates
of his category within a period of two months from the date of
receipt of a 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 respectively
challenging the view taken by the Single Judge. It was submitted that as
required by condition No.13 of the Advertisement, the caste certificate,
as well as the proof of residence had to be obtained from Sub-Divisional
Magistrate posted within the jurisdiction of State of Jharkhand, and the
appellant having failed to comply with such requirement, he could not be
considered as a candidate belonging to the reserved category in State of
Jharkhand.
In response, it was submitted on behalf of the appellant that the
limited competitive examination could not be construed to be a fresh
appointment; rather it was a case of promotion to the higher post and as
such the appellant who was already in the service under State of
Jharkhand was entitled to offer his candidature as a candidate belonging
to ST category.
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11. Following questions were framed by the Division Bench of
the High Court for its consideration: -
"(i)
Whether the appointment through limited competitive
examination is a fresh appointment or by way of promotion?
(ii)
Whether the provision of Section 73 of the Bihar
Reorganization Act, 2000 will be applicable in the process
of selection to be made through limited competitive
examination after final order passed by the Central
Government under Section 72(2) of the Act?
(iii)
Whether condition of advertisement can be allowed to be
assailed by the candidates who have participated in the
process of selection but declared unsuccessful?
(iv)
Whether in the matter of fresh appointment, reservation
can be said to be a condition of service for making applicable
the provision of Section 73 of the Bihar Reorganization Act,
2000?"
12. The Division Bench of the High Court found that 25% of
posts to be filled through the limited competitive examination would be
by way of fresh appointment and as such, the appellant could not rely
upon the provisions of Sections 72 and 73 of the Act. Since the appellant
had failed to comply with condition No.13 of the Advertisement and
since there was no certificate issued by any of the competent authorities
that he belonged to ST (Gond) category in State of Jharkhand, the
appellant could not be said to be belonging to the reserved category of
STs 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 appellant
submits inter alia that :-
(a)
The ST known as Gond in the then undivided State of Bihar,
after reorganization is part of the Constitution [Scheduled
Tribes] Order, 1950 at Sl. No.10 in respect of newly carved
State of Bihar as well as at Sl. No.11 in respect of State of
Jharkhand.
(b)
The appellant having been in the service of the then
undivided State of Bihar and his services having been
AKHILESH PRASAD v. JHARKHAND PUBLIC SERVICE
COMMISSION & ORS. [UDAY UMESH LALIT, J.]
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allocated to State of Jharkhand, is entitled to the benefits
and protection under Sections 72 and 73 of the Act.
(c)
The status as a person belonging to ST category would
entitle him to claim benefit of reservation in promotion even
with respect to service under State of Jharkhand after
reorganization.
d)
The nature of limited departmental examination is nothing
but accelerated promotion; in that as against the regular
mode of promotion those who are competent and are found
meritorious in the limited departmental examination, can be
promoted even if they are comparatively juniors.
e)
A limited departmental examination can be taken only by
those who are presently in service and is not available for
any direct recruitment from open market.
f)
Reliance is placed on the decision of this Court in Pankaj
Kumar v. State of Jharkhand2.
15. Mr. Arunabh Chowdhury, learned Additional Advocate General
appearing for State of Jharkhand and Mr. Himanshu Shekhar, learned
Advocate appearing for the Commission have reiterated the submissions
which were accepted in the decision under challenge. It is submitted
that condition No.13 was an integral part of the process of selection and
non-compliance of said condition would disentitle a candidate from
claiming status as one belonging to ST in the State. To a pointed query
whether the appellant would be entitled to claim that he belonged to said
reserved category if a regular promotion was in issue, the learned counsel
fairly accepted that he would certainly be so entitled.
16. In Pankaj Kumar,2 the father of the appellant belonged to
District Patna (which, after reorganization, is now part of successor
State of Bihar) but resided in Hazaribagh (which is now part of State of
Jharkhand) where the appellant was born. The appellant was appointed
as Assistant Teacher on 21.12.1999 and after reorganization, his service
was allocated to State of Jharkhand. While serving as a teacher, he
appeared as a member of SC category in the Combined Civil Services
Examination, and though his name appeared at Sl. No.5 against 17
vacancies reserved for SC Category, he was not selected on the ground
2 2021 (9) SCALE 576
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that he being permanent resident of Patna, he would be treated as a
migrant in State of Jharkhand.
In this factual backdrop, the question that arose for consideration
was as under:
"46. The question that emerges for our consideration in the instant
appeals is whether a person, who has been a resident of the State
of Bihar and where the Constitution (Scheduled Castes)/
(Scheduled Tribes) Order, 1950 identifying castes/ tribes is issued
extending the benefit to members of SC/ST throughout the
integrated State of Bihar which was later on bifurcated by virtue
of a statutory instrument, i.e., the Act, 2000, into two successor
States (State of Bihar and State of Jharkhand) with their rights
and privileges to the extent being protected by legislative enactment
under the provisions of the Act 2000, could still be considered to
be a migrant to the successor State of Jharkhand depriving them
of their privileges and benefits to which the incumbent or their
lineal descendants has availed from the very inception of the
Presidential Order 1950 in the integrated State of Bihar."
Thereafter, the effect of Sections 73 and 74 of the Act was
considered and it was observed:
"49. The scheme of the Act 2000 postulates that employees who
are working immediately on or before the appointed date, in the
State of Bihar, has either domicile of the districts that formed part
of State of Jharkhand under Section 3 of the Act or opted or
joined being junior in their respective seniority, stands absorbed in
the successor State of Jharkhand and by virtue of a statutory
instrument, their service conditions stand protected and became
entitled to claim privileges and benefits to which the members of
scheduled castes/ scheduled tribes/ OBC are entitled for in terms
of the Presidential Order 1950 as amended from time to time.
50. This Court, while examining almost a similar nature of
controversy in Sudhakar Vithal Kumbhare v. State of
Maharashtra & Ors., 2004 (9) SCC 481 held as under:-
"5. But the question which arises for consideration herein appears
to have not been raised in any other case. It is not in dispute that
the Scheduled Castes and Scheduled Tribes have suffered
disadvantages and been denied facilities for development and
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growth in several States. They require protective preferences,
facilities and benefits inter alia in the form of reservation, so as to
enable them to compete on equal terms with the more advantaged
and developed sections of the community. The question is as to
whether the appellant being a Scheduled Tribe known as Halba/
Halbi which stands recognized both in the State of Madhya
Pradesh as well as in the State of Maharashtra having their origin
in Chhindwara region, a part of which, on States' reorganisation,
has come to the State of Maharashtra, was entitled to the benefit
of reservation. It is one thing to say that the expression "in relation
to that State" occurring in Article 342 of the Constitution of India
should be given an effective or proper meaning so as to exclude
the possibility that a tribe which has been included as a Scheduled
Tribe in one State after consultation with the Governor for the
purpose of the Constitution may not get the same benefit in another
State whose Governor has not been consulted; but it is another
thing to say that when an area is dominated by members of the
same tribe belonging to the same region which has been bifurcated,
the members would not continue to get the same benefit when
the said tribe is recognized in both the States. In other words, the
question that is required to be posed and answered would be as to
whether the members of a Scheduled Tribe belonging to one region
would continue to get the same benefits despite bifurcation thereof
in terms of the States Reorganization Act. With a view to find out
as to whether any particular area of the country was required to
be given protection is a matter which requires detailed investigation
having regard to the fact that both Pandhurna in the district of
Chhindwara and a part of the area of Chandrapur at one point of
time 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 a case
of this nature the degree of disadvantages of various elements
which constitute the input for specification may not be totally
different and the State of Maharashtra even after reorganisation
might have agreed for inclusion of the said tribe Halba/Halbi as a
Scheduled tribe in the State of Maharashtra having regard to the
said fact in mind."
51. It was a case where the person was a member of Scheduled
Tribe known as Halba/Halbi. The tribe had its origin in District
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Chhindwara region which is a part of State of Madhya Pradesh, a
part of the district of Chhindwara place Chandrapur, on States'
reorganization, came to the existing State of Maharashtra from
the State of Madhya Pradesh, it was not considered a case of
migration from State of Madhya Pradesh to State of Maharashtra.
But the State of Maharashtra being the existing State and degree
of disadvantages of various elements may be different on the
objection being raised by the State of Maharashtra City Board
where the incumbent was employed, it was left open for
examination by the scrutiny committee constituted and established
pursuant to a judgment of this Court in Kumari Madhuri Patil and
Another vs. Addl. Commissioner, Tribal Development and Others,
1994 (6) SCC 241.
52. There is a fundamental dichotomy in the submissions made by
the counsel for the State of Jharkhand that the existing service
conditions including benefit of reservation in the promotional cadre
post shall not be varied to his disadvantage but he shall be
considered to be a migrant to the State of Jharkhand while
participating in public employment to compete in open/general
category and asked to seek the benefit of reservation in the
neighboring State of Bihar, to hold different status in his parent
State of Jharkhand after he became a member of service of the
State of Jharkhand, serving for sufficient long time on and after
the appointed day, i.e. 15th November, 2000 in the State is
unsustainable in law and in contravention to the scheme of the
Act 2000.
53. It will be highly unfair and pernicious to their interest if the
benefits of reservation with privileges and benefits flowing thereof
are not being protected in the State of Jharkhand after he is
absorbed by virtue to Section 73 of the Act 2000 that clearly
postulates not only to protect the existing service conditions but
the benefit of reservation and privileges which he was enjoying
on or before the appointed day, i.e. 15th November, 2000 in the
State of Bihar not to be varied to his disadvantage after he became
a member of service in the State of Jharkhand.
54. The collective readings of the provisions of the Act, 2000
makes it apparent that such of the persons whose place of origin/
domicile on or before the appointed day was of the State of Bihar
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now falling within the districts/regions which form a successor
State, i.e., State of Jharkhand under Section 3 of the Act, 2000
became ordinary resident of the State of Jharkhand, at the same
time, so far as the employees who were in public employment in
the State of Bihar on or before the appointed day, i.e. 15th
November, 2000 under the Act 2000, apart from those who are
domicile of either of the district which became part of the State of
Jharkhand, such of the employees who have submitted their option
or employees who are junior in the cadre of their seniority as per
the policy of the Government of India of which a reference has
been made, either voluntarily or involuntarily call upon to serve
the State of Jharkhand, their existing service conditions shall not
be varied to their disadvantage and stands protected by virtue of
Section 73 of the Act, 2000.
55. In our considered view, such of the employees who are
members of the SC/ST/OBC whose caste/tribe has been notified
by an amendment to the Constitution(Scheduled Castes)/
(Scheduled Tribes) Order 1950 under Vth and VIth Schedule to
Sections 23 and 24 of the Act 2000 or by the separate notification
for members of other backward class category, benefit of
reservation including privileges and benefits flowing thereof, shall
remain protected by virtue of Section 73 of the Act 2000 for all
practical 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 of
reservation in either of the successor State of Bihar or State of
Jharkhand, but will not be entitled to claim benefit of reservation
simultaneously in both the successor States and those who are
members of the reserved category and are resident of the
successor State of Bihar, while participating in open selection in
State of Jharkhand shall be treated to be migrants and it will be
open to participate in general category without claiming the benefit
of reservation and vice-versa.
57. We are of the view that the present appellant Pankaj Kumar
in Civil Appeal @ SLP (Civil) No.13473 of 2020, being a serving
employee in the State of Jharkhand by virtue of Section 73 of the
Act 2000, would be entitled to claim the benefit of reservation
including the privileges and benefits admissible to the members of
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Scheduled Caste category in the State of Jharkhand for all practical
purposes including participation in open competition seeking public
employment."
17. As has been clarified in the decision in Pankaj Kumar2, such
of the employees who opt for service under a successor State after
reorganization, their existing service conditions would not be varied to
their disadvantage and would stand protected by virtue of Section 73 of
the Act. Further, subject to the condition that such person would not be
entitled to claim the benefit of reservation simultaneously in both the
successor States, such employees would be entitled to claim not only the
benefit of reservation in the service of the successor State to which they
had opted and were allocated, but they would also be entitled to participate
in any subsequent open competition with the benefit of reservation.
18. It must be stated that the decision in Pankaj Kumar2 was
rendered by this Court on 19.8.2021, while the judgment presently under
challenge was delivered by the High Court on 12.5.2021. The High Court
thus did not have the benefit of the decision of this Court. The law
having been settled in Pankaj Kumar2, the judgment under appeal has
to be read in light of the decision in Pankaj Kumar2. It would therefore
be immaterial whether or not the nature of limited departmental
examination is to be taken as direct recruitment, as found by the Division
Bench of the High Court.
19. However, in order to have clarity in the matter, it must be
noted that the benefit of reservation was claimed in the limited
departmental examination for the purpose of promotion to the next higher
level. It must therefore be relevant to consider the nature of such limited
departmental examination and what it seeks to achieve as against direct
recruitment from the open market, where a person who was not part of
the concerned service, gets a chance to offer his candidature and enter
the service under a State for the first time. Limited departmental
examination affords an opportunity for persons who are already in service
at a lower level to have accelerated promotion depending upon the merit
of such candidates. In All India Judges' Association & Ors. v. Union
of India and Ors.3, the issue was considered in paragraphs 27 and 28
as under:
3 (2002) 4 SCC 247
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"27. Another question which falls for consideration is the method
of recruitment to the posts in the cadre of Higher Judicial Service
i.e. District Judges and Additional District Judges. At the present
moment, there are two sources for recruitment to the Higher
Judicial Service, namely, by promotion from amongst the members
of the Subordinate Judicial Service and by direct recruitment. The
subordinate judiciary is the foundation of the edifice of the judicial
system. It is, therefore, imperative, like any other foundation, that
it should become as strong as possible. The weight on the judicial
system essentially rests on the subordinate judiciary. While we
have accepted the recommendation of the Shetty Commission
which will result in the increase in the pay scales of the subordinate
judiciary, it is at the same time necessary that the judicial officers,
hard-working as they are, become more efficient. It is imperative
that they keep abreast of knowledge of law and the latest
pronouncements, and it is for this reason that the Shetty
Commission has recommended the establishment of a Judicial
Academy, which is very necessary. At the same time, we are of
the opinion that there has to be certain minimum standard,
objectively adjudged, for officers who are to enter the Higher
Judicial Service as Additional District Judges and District Judges.
While we agree with the Shetty Commission that the recruitment
to the Higher Judicial Service i.e. the District Judge cadre from
amongst the advocates should be 25 per cent and the process of
recruitment is to be by a competitive examination, both written
and viva voce, we are of the opinion that there should be an
objective method of testing the suitability of the subordinate judicial
officers for promotion to the Higher Judicial Service. Furthermore,
there should also be an incentive amongst the relatively junior and
other officers to improve and to compete with each other so as to
excel and get quicker promotion. In this way, we expect that the
calibre of the members of the Higher Judicial Service will further
improve. In order to achieve this, while the ratio of 75 per cent
appointment by promotion and 25 per cent by direct recruitment
to the Higher Judicial Service is maintained, we are, however, of
the opinion that there should be two methods as far as appointment
by promotion is concerned : 50 per cent of the total posts in the
Higher Judicial Service must be filled by promotion on the basis
of principle of merit-cum-seniority. For this purpose, the High
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Courts should devise and evolve a test in order to ascertain and
examine the legal knowledge of those candidates and to assess
their continued efficiency with adequate knowledge of case-law.
The remaining 25 per cent of the posts in the service shall be
filled by promotion strictly on the basis of merit through the limited
departmental competitive examination for which the qualifying
service as a Civil Judge (Senior Division) should be not less than
five years.