# PANKAJ KUMAR v. STATE OF JHARKHAND & ORS

- **Citation:** [2021] 8 S.C.R. 537
- **Court:** Supreme Court of India
- **Decided:** 2021-08-19
- **Case number:** Civil Appeal No.4864 of 2021
- **Bench:** Uday Umesh Lalit, Ajay Rastogi
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/pankaj-kumar-v-state-of-jharkhand-ors-35151
- **Pages:** 34

## Headnote

Bihar Reorganisation Act, 2000: ss. 72, 73 and 74 - Provisions
relating to services in Bihar and Jharkhand - Benefit of reservation
- Entitlement to - Person resident of the State of Bihar - Order of
1950, identifying castes/tribes whereby benefit extended to members
of SC/ST throughout the integrated State of Bihar - Subsequently
State of Bihar bifurcated into two successor States, State of Bihar
and State of Jharkhand with rights and privileges to the extent being
protected by 2000 Act - Said persons, if could still be considered to
be a migrant to the successor State of Jharkhand depriving them of
their privileges and benefits of reservation for public employment
to which the incumbent or their lineal descendants has availed in
the integrated State of Bihar - Held: 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 priveleges and
benefit of reservation simultaneously in both the successor States
since that would defeat the mandate of Arts 341(1) and 342(1) -
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 would be treated to be migrants and it would
be open to participate in general category without claiming the
benefit of reservation and vice-versa - s. 73 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, in the State of Bihar not to be varied to his disadvantage after
he became a member of service in the State of Jharkhand - In view
thereof, it would 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 the
incumbent is absorbed - Employees who were in public employment
in the State of Bihar on or before the appointed day, apart from
those who are domicile of either of the district which became part of
[2021] 8 S.C.R. 537
537
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[2021] 8 S.C.R.
the State of Jharkhand, such of the employees who have submitted
their option to serve the State of Jharkhand, their existing service
conditions shall not be varied to their disadvantage and stands
protected by virtue of s. 73 - Such of the employees who are members
of the SC/ST/OBC whose caste/tribe has been notified, benefit of
reservation including privileges and benefits flowing thereof, would
be protected by virtue of s. 73 for all practical purposes which can
be claimed (including by their wards) for participation in public
employment - Constitution (Scheduled Castes)/(Scheduled Tribes)
Order 1950.
Disposing of the appeals, the Court
HELD: 1.1 By introducing the Bihar Re-organisation Act,
2000, so far as the conditions of service of the serving employees
is concerned, are indeed being protected by virtue of Section 73
read with Section 74 under Part VIII of the Act 2000 which clearly
provides that such of the employees who were appointed
immediately before the appointed date holding or discharging
duties of any post or office in connection with the affairs of the
existing State of Bihar in any area now falling in the successor
State of Jharkhand shall continue to hold the same post or office
in the successor State provided option has been exercised to
remain in the State of Bihar, they shall be deemed to be duly
appointed to the post or office of the successor State. As a
consequence, such of the employees who are working
immediately on or before the appointed date, i.e. 15th November,
2000 in those 18 districts which have been formed part of the
State of Jharkhand in terms of Section 3 of the Act be deemed to
be appointed in the respective successor State of Jharkhand, with
their service conditions not to be varied to his disadvantage
except with the previsous approval of the Central Government.

## Text

_Characters 0–39,715 of 75,671. This is a partial read: ask again with offset=39715 for what follows._

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PANKAJ KUMAR
v.
STATE OF JHARKHAND & ORS.
(Civil Appeal No(s). 4864 of 2021)
AUGUST 19, 2021
[UDAY UMESH LALIT AND AJAY RASTOGI, JJ.]
Bihar Reorganisation Act, 2000: ss. 72, 73 and 74 - Provisions
relating to services in Bihar and Jharkhand - Benefit of reservation
- Entitlement to - Person resident of the State of Bihar - Order of
1950, identifying castes/tribes whereby benefit extended to members
of SC/ST throughout the integrated State of Bihar - Subsequently
State of Bihar bifurcated into two successor States, State of Bihar
and State of Jharkhand with rights and privileges to the extent being
protected by 2000 Act - Said persons, if could still be considered to
be a migrant to the successor State of Jharkhand depriving them of
their privileges and benefits of reservation for public employment
to which the incumbent or their lineal descendants has availed in
the integrated State of Bihar - Held: 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 priveleges and
benefit of reservation simultaneously in both the successor States
since that would defeat the mandate of Arts 341(1) and 342(1) -
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 would be treated to be migrants and it would
be open to participate in general category without claiming the
benefit of reservation and vice-versa - s. 73 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, in the State of Bihar not to be varied to his disadvantage after
he became a member of service in the State of Jharkhand - In view
thereof, it would 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 the
incumbent is absorbed - Employees who were in public employment
in the State of Bihar on or before the appointed day, apart from
those who are domicile of either of the district which became part of
[2021] 8 S.C.R. 537
537
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the State of Jharkhand, such of the employees who have submitted
their option to serve the State of Jharkhand, their existing service
conditions shall not be varied to their disadvantage and stands
protected by virtue of s. 73 - Such of the employees who are members
of the SC/ST/OBC whose caste/tribe has been notified, benefit of
reservation including privileges and benefits flowing thereof, would
be protected by virtue of s. 73 for all practical purposes which can
be claimed (including by their wards) for participation in public
employment - Constitution (Scheduled Castes)/(Scheduled Tribes)
Order 1950.
Disposing of the appeals, the Court
HELD: 1.1 By introducing the Bihar Re-organisation Act,
2000, so far as the conditions of service of the serving employees
is concerned, are indeed being protected by virtue of Section 73
read with Section 74 under Part VIII of the Act 2000 which clearly
provides that such of the employees who were appointed
immediately before the appointed date holding or discharging
duties of any post or office in connection with the affairs of the
existing State of Bihar in any area now falling in the successor
State of Jharkhand shall continue to hold the same post or office
in the successor State provided option has been exercised to
remain in the State of Bihar, they shall be deemed to be duly
appointed to the post or office of the successor State. As a
consequence, such of the employees who are working
immediately on or before the appointed date, i.e. 15th November,
2000 in those 18 districts which have been formed part of the
State of Jharkhand in terms of Section 3 of the Act be deemed to
be appointed in the respective successor State of Jharkhand, with
their service conditions not to be varied to his disadvantage
except with the previsous approval of the Central Government.
[Para 48][564-B-E]
1.2 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
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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, Constitution (Scheduled
Castes)/(Scheduled Tribes) Order 1950 as amended from time to
time. [Para 49][565-F-G]
1.3 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 neighbouring 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. [Para 52][567-D-E]
1.4 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. [Para 53][567-FG]
1.5 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 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
PANKAJ KUMAR v. STATE OF JHARKHAND & ORS.
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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. [Para 54][568A-D]
1.6 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. [Para 55][568-D-E]
1.7 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 the privileges and
benefits of reservation simultaneously in both the successor States
and if that is permitted, it would defeat the mandate of Articles
341(1) and 342(1) of the Constitution 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. [Para 56][568-E-F]
1.8 The appellant 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 Scheduled Caste category in the
State of Jharkhand for all practical purposes including participation
in open competition seeking public employment. [Para 57][568G-H; 569-B]
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1.9 As regards appellants in Civil Appeals @ SLP (Civil)
Nos. 3610-3615 of 2021 is concerned, there is no material placed
by either of them on record to justify that how long they were
residing in the districts which now form part of the successor
State of Jharkhand and the advertisement of the year 2004
required that one has to submit a caste certificate issued by the
competent authority of the State of Jharkhand and none of them
produced the caste certificate. The present batch of appellants
were appointed in the year 2005 as Constables against the post
reserved for Scheduled Caste/Scheduled Tribe/OBC category in
the State of Jharkhand, were migrants to the State of Jharkhand
which would disentitle them in claiming the benefit of reservation.
However, in view of the peculiar facts and circumstances of the
case which, however, cannot be ignored, that the appellants had
bonafidely submitted their application pursuant to an
advertisement dated 13th January, 2004 issued by the State of
Jharkhand holding selection for the post of Constable and it is
not the case of the respondents that either of the appellant has
misrepresented while participating in the selection process or
the caste/tribe/OBC to which either of the appellant belongs is
not being notified in the Constitution(Scheduled Castes)/
(Scheduled Tribes) Order, 1950 which has been amended in
reference to Sections 23 and 24 of the Act 2000 or the class of
OBC which has been notified by the State of Jharkhand and once
the appellants are appointed, after going through the process of
selection served for 3- 4 years, their services came to be
terminated in June, 2008 and who were never at fault have lost
almost 13 years in litigation and could not secure employment at
a later stage. Taking note of the peculiar facts and circumstances
and the period of service rendered, while exercising our plenary
power under Article 142 of the Constitution, to do complete
justice, each of the appellant deserves indulgence of reinstatement
in service on notional fixation of pay and allowances, etc. [Paras
58, 59][569-A-C, D-G]
1.10 The majority judgment of the High Court is
unsustainable and is set aside. The minority judgment on principle
is not concurred with. [Para 60][569-G-H; 570-A]
PANKAJ KUMAR v. STATE OF JHARKHAND & ORS.
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1.11 The appellant in Civil Appeal @ SLP(Civil) No. 13473
of 2020 would be appointed pursuant to his selection in reference
to advertisement no. 11 of 2007 and he is entitled for his seniority
as per his placement in the order of merit with notional fixation
of pay & allowances and in Civil Appeals @ SLP(Civil) Nos. 36103615 of 2021, the order of termination of each of the appellant is
quashed and set aside and the appellants would be reinstated in
service with notional pay & allowances and would not be entitled
for arrears of salary upto the date of appointment/reinstatement.
[Para 61][570-B-D]
Marri Chandra Shekhar Rao v. Dean, Seth G.S.
Medical College and Others (1990) 3 SCC 130 : [1990]
2 SCR 843; State of Maharashtra and Anr. v. Union of
India and Another (1994) 5 SCC 244 : [1994] 1 Suppl.
SCR 714; Bir Singh v. Delhi Jal Board and Others (2018)
10 SCC 312 : [2018] 10 SCR 513; Sudhakar Vithal
Kumbhare v. State of Maharashtra and Others (2004)
9 SCC 481 : [2003] 5 Suppl. SCR 746; Sau Kusum v.
State of Maharashtra and Others (2009) 2 SCC 109 :
[2008] 17 SCR 675; M.C.D. v. Veena and Others (2001)
6 SCC 571 : [2001] 1 Suppl. SCR 493; Kumari Madhuri
Patil and Another v. Addl. Commissioner, Tribal
Development and Others (1994) 6 SCC 241 : [1994] 3
Suppl. SCR 50 - referred to.
Case Law Reference
[1990] 2 SCR 843
referred to
Para 13
[1994] 1 Suppl. SCR 714
referred to
Para 13
[2018] 10 SCR 513
referred to
Para 13
[2003] 5 Suppl. SCR746
referred to
Para 17
[2008] 17 SCR 675
referred to
Para 17
[2001] 1 Suppl. SCR 493
referred to
Para 40
[1994] 3 Suppl. SCR 50
referred to
Para 51
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CIVIL APPELLATE JURISDICTION: Civil Appeal No.4864 of
2021.
From the Judgment and Order dated 24.02.2020 of the High Court
of Jharkhand at Ranchi in LPA No.80 of 2018.
With
Civil Appeal Nos.4865-4870 of 2021
K.K. Venugopal, AG, Tushar Mehta, SG, Arunabh Choudhary,
AAG, Akshay Amritanshu, Saurabh Mishra, Kanu Agarwal, Ms. Suhasini
Sen, Arvind Kumar Sharma, Ms. Pragya Baghel, Ms. Tulika Mukherjee,
Zain Khan, Shwetank Singh, Ms. Aastha Shreshtha, Himanshu Shekhar,
Jamnesh Kumar, Amit Pawan, Anand Nandan, Sumeet Gadodia, Kaushik
Poddar, Advs. for the appearing parties.
The Judgment of the Court was delivered by
RASTOGI, J.
1. Leave granted.
2. The instant batch of appeals have been preferred assailing the
judgment and Order passed by the High court of Jharkhand dated
24thFebruary, 2020 by three Judges with majority of 2:1.
3. The brief narration of facts for proper appreciation of the
controversy relevant for the purpose are as under.
4. In Civil Appeal @ SLP(Civil) No. 13473 of 2020, the appellant's
father originally belonged to District Patna in the State of Bihar but as
alleged, the appellant was born on 27th November, 1974 in Hazaribagh
where his father was residing which earlier was part of the unified State
of Bihar but after the Bihar Reorganisation Act, 2000(hereinafter being
referred to as "Act, 2000") came into force from the appointed day, i.e.
15th November 2000, District Hazaribagh became part of the successor
State of Jharkhand.
5. It was the specific case pleaded by him that he was born &
brought up and took his education within the territory which is now in the
State of Jharkhand. He belongs to Scheduled Caste category and a
certificate was issued by the competent authority in the State of
Jharkhand. He was appointed on the post of Assistant Teacher on 21st
December, 1999 and posted in a school in Ranchi, the capital of Jharkhand
PANKAJ KUMAR v. STATE OF JHARKHAND & ORS.
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against the post reserved for SC category and pursuant to the cadre
revision on bifurcation of the States, he opted the State of Jharkhand.
While serving as a teacher, to go forward and to fulfil his ambitions, he
appeared as a member of SC category in the third Combined Civil Services
examination, 2008 pursuant to an advertisement no. 11 of 2007 published
by the State of Jharkhand.
6. He cleared the preliminary, as well as main examination followed
with an interview and the final result was published in the year 2010 and
his name appeared at Sl. No. 5 against 17 vacancies reserved for
Scheduled Caste category. But when his appointment order was withheld
and persons lower in order of merit in the Scheduled Caste category
were appointed on 11th August, 2010, receiving no response from the
State authorities of his ignorance from being considered for appointment
despite being placed in the order of merit, he knocked the doors of the
High Court by filing a writ petition under Article 226 of the Constitution.
7. In the counter affidavit filed by the State of Jharkhand, it was
admitted that the appellant is the member of Scheduled Caste and has
been duly selected in the Scheduled Caste category, but their defence
was that his service book indicates that he is permanent resident of
District Patna in the State of Bihar is to be treated as migrant to the
State of Jharkhand. In consequence, he was not eligible for appointment
in Scheduled Caste category pursuant to his participation in the selection
process held in the Combined Civil Services Examination, 2008.
8. Learned Single Judge of the High Court by a judgment dated
13th October, 2017 allowed the writ petition with a direction to the
respondent State to issue the letter of appointment in his favour, which
was challenged by State in the Letters Patent Appeal and came to be
allowed by the impugned judgment with the majority of 2:1.
9. The other batch of appeals in Civil Appeals @ SLP(Civil) No(s).
3610-3615 of 2021 are preferred by the appellants as alleged who were
residing in the State of Jharkhand on the appointed day, i.e. 15th November,
2000 and after going through the process of selection held pursuant to
an advertisement dated 13th January, 2004, were appointed as Constables
against the post reserved for Scheduled Caste/Scheduled Tribe/OBC
category in the State of Jharkhand and after they had served for about
three years, their services were terminated on the premise, that they are
permanent residents of the State of Bihar and had produced the caste
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certificate issued by the authority of the State of Bihar, hence could not
be entitled to claim benefit of reservation of SC/ST/OBC in the successor
State of Jharkhand, by an Order dated 16th June, 2008.
10. The order of termination came to be challenged by filing writ
petition under Article 226 of the Constitution which was dismissed by
the learned Single Judge of the High Court by a judgment dated
30th January, 2015. Aggrieved by the order of learned Single Judge,
appellants preferred LPA that came to be clubbed along with the LPA
preferred by the appellant Pankaj Kumar and all the analogous matters
were heard and dismissed by the impugned judgment which is a subject
matter of challenge in the instant batch of appeals.
11. Learned counsel for the appellants submits that it is an an
undisputed fact that in the unified State of Bihar, all the appellants suffered
the degree and element of disadvantages and social hardships which
constitute the input for inclusion of their caste/tribe in the category of
Scheduled Caste/Scheduled Tribe reflected from the Constitution
(Scheduled Castes)/(Scheduled Tribes) Order, 1950 in the State of Bihar.
12. It was submitted that the place of origin of the appellant Pankaj
Kumar's lineal descendants was of District Patna but he was born in
district Hazaribagh on 27th November, 1974 and from the year 1989, he
is the resident of District Ranchi where he obtained his education and
later appointed on 21st December, 1999 as Assistant Teacher in a school
in Ranchi and in terms of Section 73 read with Section 74 of the Act,
2000 for all practical purposes, he became the ordinary resident of State
of Jharkhand and it has not been disputed by the authorities of the State
of Jharkhand that the caste certificate of the appellant, after going
through the rigors of disadvantages and social hardships, has been issued
to him in the State of Jharkhand in reference to the Vth (Part VIA) and
VIth (Part XXII) Schedule inserted to the Constitution(Scheduled Castes)/
(Scheduled Tribes) Order, 1950 in reference to Sections 23 and 24 of
the Act, 2000.
13. It was further submitted that the view expressed by the High
Court under the impugned judgment in treating the appellant to be a
migrant to the State of Jharkhand is not only in violation of Article 341(1)
of the Constitution but also of the Scheme of the Act, 2000 and reliance
placed on the principles of migration held by the Constitution Bench
judgment of this Court in Marri Chandra Shekhar Rao Vs. Dean,
PANKAJ KUMAR v. STATE OF JHARKHAND & ORS.
[RASTOGI, J.]
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Seth G.S. Medical College and Others1; Action Committee on Issue
of Caste Certificate to Scheduled Castes and Scheduled Tribes in
the State of Maharashtra and Anr. Vs. Union of India and Another2;
and Bir Singh Vs. Delhi Jal Board and Others3 has no application in
the facts of the instant case.
14. It was submitted that these all were the cases where the
incumbent migrated voluntarily from one State to another State but for
the reason that nomenclature of the caste to which the incumbent belonged
were notified in both the States in the category of scheduled castes
under the Presidential Order of 1950, the incumbent migratee claimed
his right in the State where he had been migrated seeking the benefit of
reservation as a member of Scheduled Caste which admittedly the
migratee was not entitled to claim in the later State.
15. But the case of the appellant is not of voluntary or involuntary
migration from the State of Bihar to the State of Jharkhand rather it is a
case where the unified State of Bihar is divided into the two successor
State of Bihar and State of Jharkhand under the Act, 2000 and with the
inclusion of the caste/tribe under the Presidential Order 1950 as amended
from time to time, the caste was identified because of the disadvantages
and social hardships being faced by the members concerned in the
integrated State of Bihar who were entitled to seek the benefit of
reservation throughout the State of Jharkhand for public employment.
16. Learned counsel further submits that once the President
pursuant to Section 23 and 24 of the Act, 2000 has notified the Vth and
VIth Schedule to the Constitution(Scheduled Castes)/(Scheduled Tribes)
Order, 1950 for the successor State of Jharkhand which includes the
caste to which the appellant belong, their appears no rational basis to
disentitle him from claiming privileges and benefits available to the
members of the SC/ST/OBC category, as the case may be, in the
successor State of Jharkhand.
17. Learned counsel for the appellants in the connected appeals,
in addition, further submits that the appellants are members of SC/ST/
OBC in the unified State of Bihar and after creation of the State of
Jharkhand under the Act 2000, their castes/tribes/OBC are being duly
1 1990(3) SCC 130
2 1994(5) SCC 244
3 2018(10) SCC 312
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acknowledged in both the States, i.e. State of Bihar and State of
Jharkhand and their rights seeking benefit of reservation in the State of
Bihar have been restricted by a proviso added to Section 4 by an
amendment Act, 2003 in the Bihar Reservation of Vacancies in Posts
and Services(for Scheduled Castes, Scheduled Tribes and Other
Backward Classes) Act, 1991 (hereinafter being referred to as the "Act
1991") limiting it to only those who are residing in the State of Bihar and
if they are treated to be migrants in the State of Jharkhand as being
projected by the respondents to nullify their claims seeking benefit of
reservation, they will be deprived of claiming reservation in both the
States (Bihar and Jharkhand) and taking assistance of the judgment of
this Court in Sudhakar Vithal Kumbhare Vs. State of Maharashtra
and Others4 and Sau Kusum Vs. State of Maharashtra and Others5,
counsel submits that the High Court has committed a serious error in
declining their claim and the minority view is based on the touch stone of
the mandate of the Constitution and of the Act 2000 protecting their
fundamental rights enshrined under the Constitution which deserves
acceptance by this Court.
18. Mr. K.K. Venugopal, learned Attorney General, while
supporting the minority view of the impugned judgment submits that the
Ministry of Home Affairs issued a Government Order dated 22nd February,
1985 stating inter alia that persons belonging to the reserved category
are entitled to claim benefits only within their home State and not in the
State to which the incumbent has migrated and the Constitution Bench
of this Court has further approved that one is entitled to claim benefit of
reservation only in their home State and not in the State one has migrated.
19. Learned Attorney General further submits that Articles 341(1)
and 342(1) of the Constitution clearly mandates that the President with
respect to any State or Union Territory, and where it is a State, after
consultation with the Governor thereof, notify specifically the castes,
races or tribes or parts of or groups within castes, races or tribes which
shall for the purposes of this Constitution be deemed to be Scheduled
Castes in relation to that State or Union Territory and this negates the
benefits to be claimed by the incumbent in the State to which one has
migrated for all practical purposes.
4 2004(9) SCC 481
5 2009(2) SCC 109
PANKAJ KUMAR v. STATE OF JHARKHAND & ORS.
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20. The Presidential Order issued in exercise of Articles 341(1)
and 342(1) of the Constitution notified the castes/tribes in the category
of SC/ST and by separate notification in the category of OBC was
applicable throughout the unified State of Bihar. The presumption has to
be drawn that unlike members of such castes which are notified, their
disadvantages and social hardships have been noticed by the caste
certificate issuing authority and the place of origin is material for the
authority to inquire as to whether the person is entitled to be a member
of the Scheduled Castes or Scheduled Tribes notified in the Constitution
(Scheduled Castes)/(Scheduled Tribes) Order, 1950 but after issuance
of the caste certificate, he become eligible to seek public employment
and avail privileges and benefits flowing thereof throughout the State
with no restrictions impounded thereof.
21. After the unified State of Bihar has been divided into two
successor States, i.e. State of Bihar and State of Jharkhand under the
Act 2000 w.e.f. 15th November, 2000, and 18 districts of the unified
State of Bihar had been carved out under Section 3 of the Act, 2000 to
the successor State of Jharkhand with a further rider/restriction under
the Act as being reflected under part VIII which relates for serving
employees and Section 73 read with Section 74 in particular protects the
rights of persons in employment working on or before the appointed
date, i.e. 15th November, 2000, and who are residents of 18 districts
notified under Section 3 of the Act became part of State of Jharkhand,
their rights stand protected for all practical purposes in the given
circumstances, it may not be justiciable for the State of Jharkhand to say
that the rights of the incumbent including his caste certificate which he
holds shall be protected in terms of Section 74 of the Act 2000 even for
his promotion against the vacancy of SC/ST at a later point of time but
the same incumbent will not be permitted to participate in the open
selection in the State of Jharkhand as a member of the reserved category
for the reason that his place of origin for the issuance of the caste
certificate is in the State of Bihar particularly when he was working on
or before the appointed date, i.e. 15th November, 2000 either in one of
the 18 districts which formed part of Jharkhand or employees who
tendered option, their services were protected by virtue of Section 73 of
the Act 2000 and such class of incumbents would not be considered to
be migrants to the State of Jharkhand and according to him, their cases
are covered by the judgments of this Court in Sudhakar Vithal
Kumbhare(supra) and Sau Kusum(supra) and submits that the
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minority view is the correct view which deserves to be considered by
this Court with a minor correction that in the minority judgment, the
learned Judge has expressed that such of the members of the SC/ST/
OBC who belong to notified castes in the State of Bihar and State of
Jharkhand under the Presidential Order 1950 are entitled to claim benefit
of reservation in both the States is not the correct view for the reason
that one can claim benefit of reservation in either of the State and once
these incumbents became ordinary resident of the State of Jharkhand,
they are entitled to claim benefit of reservation only in the State of
Jharkhand and that is the reason for which the amendment has been
made by the State of Bihar under the Act 1991 by adding a proviso to
Section 4 of the Amendment 2003 indicating that those who are residing
out of the State of Bihar shall not be entitled to claim benefits of reservation
under the Act 1991.
22. Per contra, learned counsel for the State of Jharkhand, on the
other hand, while supporting the majority view of the impugned judgment
submits that the appellants are neither the original inhabitants nor
permanent residents of 18 districts that form part of the State of Jharkhand
in terms of Section 3 of the Act 2000. They are originally permanent
inhabitants and residents of the territories which now form an integral
part of the successor State of Bihar and taking note of Articles 341 and
342 of the Constitution of India, as interpreted by the Constitution Bench
of this Court in Marri Chandra Shekhar Rao(supra); Action
Committee on Issue of Caste Certificate to Scheduled Castes
and Scheduled Tribes in the State of Maharashtra and Anr.(supra)
and Bir Singh (supra) and taking note of the Government Order dated
22nd March, 1977 followed with Government Order dated 22nd February,
1985, submits that all the incumbents although are undisputedly the
members of SC/ST/OBC and their caste has been notified by an
amendment to the Constitution(Scheduled Castes)/(Scheduled Tribes)
Order, 1950 in the State of Jharkhand in terms of Sections 23 and 24 of
the Act, 2000 but would make them entitled to claim benefit of reservation
in the State of Bihar and the fact that they have been residing in the
State of Jharkhand on or before the appointed date, i.e. 15th November,
2000 will only protect their rights/service conditions under Chapter VIII
of Act 2000, and if any of them wants to appear and participate in the
open selection seeking public employment or claiming other privileges,
etc. they would be treated to be migrant to the State of Jharkhand
regardless of the fact that their caste is being notified in the successor
PANKAJ KUMAR v. STATE OF JHARKHAND & ORS.
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State of Jharkhand by an amendment in the Presidential Order of 1950
and once this has been expressly expounded by the Constitution Bench
of this Court of which a reference has been made, their claim has been
rightly considered and repelled by the majority view expressed in the
impugned judgment and that needs no interference of this Court.
23. We have considered the submissions made by the parties and
with their assistance perused the material available on record.
24. The mandate of affirmative action in favour of Scheduled
Castes/Scheduled Tribes indeed has an important place in our
constitutional scheme. Articles 341(1) and Article 342(1) of the
Constitution of India empowers the President to specify the race or
tribes or part of groups within caste, race or tribes with respect to any
State or Union Territory for the purpose of the Constitution deemed to
be SC/ST in relation to that State or Union Territory, as the case may be.
The object of Articles 341(1) and 342(1) of the Constitution is to provide
additional protection to the members of the SC/ST having regard to the
social and economical backwardness from which they suffer. It is obvious
that in specifying castes, race or tribes, the President has been authorised
to limit notification to part of groups with the castes, etc. and that must
mean that after examination of the disadvantages from which they have
suffered and the social and economic backwardness, the President may
specify castes/tribes etc. as parts thereof in relation to the entire State
or in relation to parts of the State where he is satisfied that after
examination of the disadvantages, social and educational hardship and
backwardness of the race, caste or tribes justifies such specification.
25. Articles 341 and 342 make it clear that the caste, race or tribe
or part of or group within any caste, race or tribe as specified in the
Presidential Order under Article 341(1) or a tribal community, as notified
in the Presidential Order under Article 342(1) shall be deemed to be
Scheduled Castes/Scheduled Tribes for the purpose of the Constitution
in relation to that State or Union Territory, as the case may be and this
exposition has been made clear from clause (2) of the Constitution
(Scheduled Castes)/(Scheduled Tribes) Order, 1950.
26. There are various parameters which have to be taken into
consideration to recognize a caste/race as Scheduled Caste/Scheduled
Tribe in a State/Union Territory or a particular part thereof. This clearly
manifests from the mandate of Article 341(1) and 342(1) of the
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Constitution that after elaborate enquiries are made, the Presidential
orders are issued. While doing so, the Presidential Orders not only provides
that even specified parts or groups of castes, races or tribes/tribal
community could be Scheduled castes/Scheduled Tribes in a particular
State/Union Territory but also makes it clear that certain castes or tribes
or parts/groups thereof could be Scheduled Castes/Scheduled Tribes in
specified/particular area/district of a State/Union Territory.
27. The consideration for specifying a Scheduled Caste or
Scheduled Tribes or Backward Classes in any given State depends on
the nature and extent of the disadvantages and social and educational
backwardness/hardships suffered by the members concerned of the class
in the State specific but that may be absent in another State to which the
person has migrated.
28. Whenever States' reorganization has taken place in the past,
Parliament has exercised its powers under Articles 341(1) and 342(1)
and notified specific castes/tribes that were entitled to be recognized as
Scheduled Castes/Scheduled Tribes in relation to the reorganized States/
Union Territories. The scheme of the Constitution(Scheduled Castes)/
(Scheduled Tribes) Order, 1950 makes it clear that the intention of the
Parliament was to extend the benefits of reservation in relation to the
State specific/Union Territory only to the castes, races or tribes as
mentioned in the Presidential Orders.
29. The President, after consultation with the Governor and States
concerned in exercise of its power conferred under Articles 341(1) and
342(1) of the Constitution of India notified the Constitution(Scheduled
Castes) Order 1950 and the Constitution(Scheduled Tribes) Order, 1950
the part of which relevant for the purpose is as under:-
(Scheduled Caste)
PART II - BIHAR
1. Throughout the State:-
1. Bauri
11. Hari, including Mehtar
2. Bantar
12. Kanjar
3. Bhogta
13. Kurariar
4. Chamar
14. Lalbegi
PANKAJ KUMAR v. STATE OF JHARKHAND & ORS.
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5. Chaupal
15. Mochi
6. Dhobi
16. Musahar
7. Dom
17. Nat
8. Dusadh, including Dhari or
18. Pan
 Dharhi
19. Pasi
9. Ghasi
20. Rajwar
10. Halalkhor
21. Turi
2. In Patna and Tirhut divisions, and the districts of Monghyr,
Bhagalpur, Purnea and Palamau:-
Bhumij
3. In Patna, Shahabad, Gaya and Palamaudistricts:-
Bhuiya
4. In Shahabad district:-
Dabgar
(Scheduled Tribe)
PART II - BIHAR
1. Throughout the State:-
1. Asur
15. Kharwar
2. Baiga
16. Khond
3. Bathudi
17. Kisan
4. Bedia
18. Kora
5. Binjhia
19. Korwa
6. Birhor
20. Lohara
7. Birjia
21. Mahli
8. Chero
22. Mal Paharia
9. Chik Baraik
23. Munda
10. Gond
24. Oraon
11. Gorait
25. Parhaiya
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12. Ho
26. Santal
13. Karmali
27. SauriaPaharia
14. Kharia
28. Savar
2. In the districts of Ranchi, Singbhum, Hazaribagh, Santal,
Parganas and Manbhum:-
Bhumij
30. It may be relevant to note that in the Constitution(Scheduled
Castes) Order, 1950, 21 castes have been notified in the category of
Scheduled Castes which applies throughout the State. At the same time,
there are castes like 'Bhumij, Bhuiya and Dabgar', which are identified
on region basis. In the Constitution(Scheduled Tribes) Order, 1950, 28
castes have been notified as Scheduled Tribes which applies throughout
the State and caste 'Bhumij' in certain regions is in the schedule of
Scheduled Castes and the very caste 'Bhumij' of the same nomenclature
in other districts/regions in the unified State of Bihar is notified as
Scheduled Tribes. Certain modifications were made at a later stage in
the year 1956 and thereafter but that may not be so relevant for the
present purpose.
31. To identify that the person is a member of the Scheduled
Caste or Scheduled Tribe, it may be imperative for him to justify and
establish that he is a member of that caste/tribe who has been a sufferer
of disadvantages or social hardships or economic sufferings to which
the members of the castes/tribes were subjected to and is identified in
the Presidential Notification of 1950 and the caste certificate issuance
authority has to take into consideration the place of origin/domicile and
resident of the State to conduct a discreet enquiry or inquiry contemplated
under the scheme of rules for the purpose of recording a finding as to
whether the incumbent who claimed to be a member of the Scheduled
Caste or Scheduled Tribe or OBC, as the case may be, is eligible and
entitled for issuance of the caste certificate as has been claimed by him
and once a certificate is issued to him, he becomes a member of the
scheduled caste or scheduled tribe or other backward class, as the case
may be, and his wards also at a later stage became entitled to seek
privileges and benefits flowing thereof throughout the State which are
admissible under the law.
PANKAJ KUMAR v. STATE OF JHARKHAND & ORS.
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[2021] 8 S.C.R.
32. At the same time, such of the castes/tribes which are region
based, the incumbent has to furnish in the first instance the place of
origin/domicile of that particular region where the caste/tribe has been
identified as scheduled caste/scheduled tribe to make him entitled to
claim reservation of SC/ST, as the case may be, and after the caste
certificate is issued to the incumbent, his wards also became entitled to
claim the privileges and benefits of the reservation admissible under the
law throughout the State.
33. The Act 2000 was enacted by the Parliament, which came
into force on the appointed day i.e. 15th November 2000 and under Section
3 of the Act 2000, a successor State of Jharkhand was formed comprising
of 18 districts of the integrated State of Bihar and the said territories
ceased to form part of the State of Bihar. The scheme of Act 2000
clearly demonstrates that apart from the territorial division of State of
Bihar and State of Jharkhand, provision was made in the Constitution
consisting of the representation of the legislators, the house of people,
the legislative assembly, delimitation of Constituencies, etc. Amendment
was made to the Presidential Order 1950 to the scheduled castes/
scheduled tribes from the appointed date, i.e. 15th November, 2000
pursuant to Sections 23 and 24 of the Act enacted Vth(Part VIA) and
VIth(Part XXII) Schedule to apply throughout the State of Jharkhand.
34.