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Pankaj Kumar Vs. State of Jharkhand & Ors.

[Civil Appeal No(s). 4864 of 2021 arising out of S.L.P. (Civil) No(s). 13473 of 2020]

[Civil Appeal No(s). 4865-4870 of 2021 arising out of S.L.P. (Civil) No(s). 3610-3615 of 2021]

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 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 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, 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 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.

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 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 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 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
5. Chaupal 15. Mochi
6. Dhobi 16. Musahar
7. Dom 17. Nat
8. Dusadh, including Dhari or Dharhi 18. Pan
  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
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.

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. The Presidential Order 1950 notifying the castes/tribes notified for the State of Jharkhand after an amendment to the Constitution(Scheduled Castes)/(Scheduled Tribes) Order, 1950 introducing Schedule to Sections 23 and 24 of the Act 2000 are reproduced hereunder:-

THE FIFTH SCHEDULE

(See Section 23)

AMENDMENT OF THE CONSTITUTION (SCHEDULED CASTES)

ORDER, 1950

In the Constitution (Scheduled Castes) Order, 1950, in the Schedule,-

(i) in Part III relating to State of Bihar, in item No. 5, the brackets and words "(excluding North Chhotanagpur and South Chhotanagpur divisions and Santhal Parganas district)" shall be omitted;

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

"PART VIA -Jharkhand

1. Bantar 2. Bauri 3. Bhogta
4. Bhuiya 5. Chamar, Mochi 6. Chaupal
7. Dabgar 8. Dhobi 9. Dom, Dhangad
10. Dusadh, Dhari, Dharhi 11. Ghasi 12. Halalkhor
13. Hair, Mehtar, Bhangi 14. Kanjar 15. Kuraiar
16. Lalbegi 17. Musahar 18. Nat
19. Pan, Sawasi 20. Pasi 21. Rajwar
22. Turi    

THE SIXTH SCHEDULE

(See section 24)

AMENDMENT TO THE CONSTITUTION (SCHEDULED TRIBES)

ORDER, 1950

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

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

(2) in the Schedule,-

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

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

"PART XXII -Jharkhand

1. Asur 2. Baiga 3. Banjara
4. Bhathudi 5. Bedia 6. Binjhia
7. Birhor 8. Birjia 9. Chero
10. Chic Baraik 11. Gond 12. Gorait
13. Ho 14. Karmali 15. Kharia
16. Kharwar 17. Khond 18. Kisan
19. Kora 20. Korwa 21. Lohra
22. Mahli 23. Mal Pahariya 24. Munda
25. Oraon 26. Parhaiya 27. Santhal
28. SauriaPaharia 29. Savar 30. Bhumij."

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

36. In the integrated State of Bihar, in terms of the Constitution (ScheduledCastes)/(Scheduled Tribes) order, 1950, after the caste certificate of the Scheduled Castes/Scheduled Tribes/OBC has been issued to the incumbent on the basis of his place of origin/domicile, made him entitled to claim privileges and benefits throughout the State of Bihar. After the incumbent has enjoyed the privileges and benefits as a member of Scheduled Caste/Scheduled Tribe/OBC for more than five decades, at the time of issuance of the amendment notification introducing Vth and VIth Schedule in terms of Sections 23 and 24 of Act 2000 in November 2000, those very castes/tribes/OBC with the same nomenclature and geographical conditions, now located in the successor State of Jharkhand by virtue of Section 3 of the Act 2000 became applicable to the residents of the successor State for all practical purposes.

37. The Constitution Bench of this Court in Marri Chandra Shekhar Rao(supra) had an occasion to examine as to whether the person belonging to Scheduled Castes in relation to a particular State would be entitled to the benefits or concessions allowed to Scheduled Castes in the matter of education/employment in another State. Referring to various provisions of the Constitution and the grounds on which the Presidential Orders were issued and noticing earlier judgments, this Court held as under:-

"9. It appears that Scheduled Castes and Scheduled Tribes in some States had to suffer the social disadvantages and did not have the facilities for development and growth. It is, therefore, necessary in order to make them equal in those areas where they have so suffered and are in the state of underdevelopment to have reservations or protection in their favour so that they can compete on equal terms with the more advantageous or developed sections of the community. Extreme social and economic backwardness arising out of traditional practices of untouchability is normally considered as criterion for including a community in the list of Scheduled Castes and Scheduled Tribes.

The social conditions of a caste, however, varies from State to State and it will not be proper to generalise any caste or any tribe as a Scheduled Tribe or Scheduled Caste for the whole country. This, however, is a different problem whether a member or the Scheduled Caste in one part of the country who migrates to another State or any other Union territory should continue to be treated as a Scheduled Caste or Scheduled Tribe in which he has migrated. That question has to be judged taking into consideration the interest and well-being of the Scheduled Castes and Scheduled Tribes in the country as a whole." (emphasis supplied)

38. This Court, while rejecting the contention that the member of the Scheduled Castes/Scheduled Tribes should get the benefit for the purpose of Constitution through out the territory of India, observed that if such contention is to be accepted, the very expression "in relation to State" would lose its significance.

Marri Chandra Shekhar Rao(supra) was further followed by another Constitution Bench of this Court in Action Committee on Issue of Caste Certificate to Scheduled Castes and Scheduled Tribes in the State of Maharashtra and Anr.(supra) which further came to be followed by another Constitution Bench of this Court in Bir Singh(supra) wherein in para 34, it was held as under:-

"34. Unhesitatingly, therefore, it can be said that a person belonging to a Scheduled Caste in one State cannot be deemed to be a Scheduled Caste person in relation to any other State to which he migrates for the purpose of employment or education. The expressions "in relation to that State or Union Territory" and "for the purpose of this Constitution" used in Articles 341 and 342 of the Constitution of India would mean that the benefits of reservation provided for by the Constitution would stand confined to the geographical territories of a State/Union Territory in respect of which the lists of Scheduled Castes/Scheduled Tribes have been notified by the Presidential Orders issued from time to time. A person notified as a Scheduled Caste in State 'A' cannot claim the same status in another State on the basis that he is declared as a Scheduled Caste in State 'A'."

(emphasis supplied)

39. So far as involuntary migration from one State to another State is concerned, the Constitution Bench of this Court in Marri Chandra Shekhar Rao(supra) taking note of the fate of those castes/tribes seeking protection of being classed as Scheduled Castes or Scheduled Tribes in the State of their origin when, because of transfer or movement of their father or guardian's business or service, they move to another State having considered the fate of their migration from one State to another State being involuntary, by force or circumstances either of employment or of profession, left it for the legislature or the Parliament to consider it for appropriate legislation bearing that aspect in mind that their rights and privileges as members of Scheduled Castes/Scheduled Tribes be well protected by virtue of provisions of Articles 341(1) and 342(1) of the Constitution and observed in para 23 as under:-

"23. Having construed the provisions of Articles 341 and 342 of the Constitution in the manner we have done, the next question that falls for consideration, is, the question of the fate of those Scheduled Caste and Scheduled Tribe students who get the protection of being classed as Scheduled Caste or Scheduled Tribe in the States of origin when, because of transfer or movement of their father or guardian's business or service, they move to other States as a matter of voluntary (sic involuntary) transfer, will they be entitled to some sort of protective treatment so that they may continue or pursue their education.

Having considered the facts and circumstances of such situation, it appears to us that where the migration from one State to another is involuntary, by force of circumstances either of employment or of profession, in such cases if students or persons apply in the migrated State where without affecting prejudicially the rights of the Scheduled Castes or Scheduled Tribes in those States or areas, any facility or protection for continuance of study or admission can be given to one who has or migrated then some consideration is desirable to be made on that ground.

It would, therefore, be necessary and perhaps desirable for the legislatures or the Parliament to consider appropriate legislations bearing this aspect in mind so that proper effect is given to the rights given to Scheduled Castes and Scheduled Tribes by virtue of the provisions under Articles 341 and 342 of the Constitution. This is a matter which the State legislatures or the Parliament may appropriately take into consideration."

(emphasis supplied) 40. In relation to Backward Classes, this Court in M.C.D. Vs. Veena and Others6 has specifically held that migrants are not entitled for reservation as Other Backward Classes (OBCs) in the States/Union Territories where they have migrated. The relevant portion of the judgment that may be noticed is as hereunder: "6. Castes or groups are specified in relation to a given State or Union Territory, which obviously means that such caste would include caste belonging to an OBC group in relation to that State or Union Territory for which it is specified.

The matters that are to be taken into consideration for specifying a particular caste in a particular group belonging to OBCs would depend on the nature and extent of disadvantages and social hardships suffered by that caste or group in that State. However, it may not be so in another State to which a person belonging thereto goes by migration. It may also be that a caste belonging to the same nomenclature is specified in two States but the considerations on the basis of which they had been specified may be totally different. So the degree of disadvantages of various elements which constitute the data for specification may also be entirely different.

Thus, merely because a given caste is specified in one State as belonging to OBCs does not necessarily mean that if there be another group belonging to the same nomenclature in another State, a person belonging to that group is entitled to the rights, privileges and benefits admissible to the members of that caste. These aspects have to be borne in mind in interpreting the provisions of the Constitution with reference to application of reservation to OBCs."

(emphasis supplied)

41. By the judgments of the Constitution Bench of which the reference has been made (supra), it has been settled that the person belonging to Scheduled Castes/Scheduled Tribes/OBC of the State, on migration to another State voluntarily or involuntarily, will not be entitled to claim benefits of reservation including privileges and benefits admissible to the member of the Scheduled Castes/Scheduled Tribes/OBC even though, the caste or tribe of the same nomenclature is notified in the latter State(State where migrated) and if that is being permitted, the very expression as mandated under Articles 341(1) and 342(1) of the Constitution in "relation to the State" would become otiose and this issue remain no more res integra after the pronouncements made by the Constitution Bench of this Court.

42. Learned counsel for the respondents has placed heavy reliance on the Government Order issued by the Ministry of Home Affairs dated 22nd March, 1977 followed with 18th November, 1982, 6th August, 1984 and 22nd February, 1985. The bare perusal of the Government Orders of which a reference has been made are addressed to the Chief Secretaries of all State Governments/Union Territory administrations in the form of clarifications issued from time to time to the respective competent authorities for issuance of Scheduled Castes/Scheduled Tribes caste certificates.

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

"It is also clarified that a Scheduled Caste/tribe persons who has migrated from the State of origin to some other State for the purpose of seeking education, employment, etc. will be deemed to be a Scheduled Caste/tribe of the State of his origin and will be entitled to derive benefits from the State of origin and not from the State to which he has migrated."

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

"Provided further that the candidates residing out of the State of Bihar shall not claim for benefits of reservation under this Act."

45. In the instant case, we are not examining the issue of voluntary or involuntary migration of the members of the SC/ST/OBC from State 'A' to another State 'B' claiming privileges/benefits admissible to member of SC/ST/OBC even though there is a caste or tribe of the same nomenclature in the latter State.

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.

47. As regards the employees serving immediately before the appointed day in connection with the affairs of the State of Bihar are concerned, special provisions have been made to protect their service conditions under Part VIII of the Act 2000 and for its implementation, the Government of India in exercise of its power under Section 72 came out with a scheme laying down the criteria for allocation of the employees to the State of Jharkhand and more specifically, so far as Scheduled Castes/Scheduled Tribes/OBC are concerned, allocation has taken place based on (1) domicile (2) option of the employee(3) if still the posts remain vacant, allocation to take place amongst those who are in the 'juniority' cadre in the reverse order of seniority. The extract of the Government Order issued by the Department of Personnel & Training, Government of India for protecting the service conditions of the serving employees under Act, 2000 is reproduced hereunder:-

"Department of Personnel &Tranining

State Reorganization

Introduction

State Reorganization Acts were enacted in November 2000 for the purpose of reorganization of the then existing States of Uttar Pradesh, Madhya Pradesh and Bihar. As a result, UP was bifurcated into UP & Uttarakhand, MP became MP & Chhattisgarh and Bihar was reorganized into Bihar and Jharkhand. As per provisions of these three Acts, Central Government is vested with the authority for allocating services of personnel between the successor States in connection with the State Re-organisation. Other than the employees of All India Services, State Government employees of State Cadre, are allocated between the successor States by the State Re-organisation (SR) Division in the Department of Personnel & Training.At present allocation of State Government employees between the successor States of Uttar Pradesh / Uttarakhand, Madhya Pradesh/ Chhattisgarh and Bihar/Jharkhand, is in progress.

Basis of Allocation

Sl. No. State Appointed day
1. Madhya Pradesh 01.11.2000
2. Uttar Pradesh 09.11.2000
3. Bihar 15.11.2000

The strength of Employees / vacancies existed as on the Appointed Day is the base for allocation of posts between the successor States. The appointed day for Uttar Pradesh, Madhya Pradesh and Bihar are as under:-

Criteria of Allocation

The broad principle of allocation of State cadre employees which inter alia include allocation first by option, followed by domicile (Home District) and lastly by inclusion of junior most personnel in the reverse order of seniority.

If the number of posts allocated to a successor States are more than the total number of optees and domicile (Home District), in order to fill up the balance posts, the employees lower down in the seniority position in the cadre are considered for allocation even against their options. Option once exercised by the employees is not reversible. Keeping in view the resentment expressed by the employees who were allocated on domicile and juniority basis against their willingness, several exceptions were made to the guidelines to facilitate certain class of employees to be allocated to the States of their option.

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

Sl. No. Categories   Details
(i) Women employees - Allocated based on option
(ii) Class IV employees - Allocated based on option
(iiii) Handicapped persons - Allocated based on option
(iv) Spouse Policy - Both the spouse to be allocated to a single successor State based on their option
(v) Medical hardships cases - Allocation is based on option in the following medical hardship cases
(a) Cancer patient - Self or family#
(b) Blindness - Self only
(c ) Heart Bye-pass surgery - Self only if done within two years from the date of representation is considered by the Committee
(d) Kidney transplantation/

Kidney failure and continuing on dialysis

- Self or family#
(e ) Mental illness - Self or family#, restricted to indoor treatment for at least three months
(f) Bhopal Gas Tragedy - Allocated based on option only if the compensation amount received by self/family is more than Rs. 50,000/- or more
(g) SC/ST Employees - Allocated based on domicile or on option basis.

#family include spouse, dependent children and dependent parents.

(f) Final Allocation

Based on the recommendations of the State Advisory Committee and after ensuring that the recommendations are as per the Guidelines on Reorganization, the Central Government issues final allocation of personnel between the successor States."

48. By introducing the 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. Sections 73 and 74 of the Act releavant for the purpose are extracted hereunder:-

"Section 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.

Section 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 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."

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(supra) 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 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 Reorganisation 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 Chhindwara region which is a part of State of Madhya Pradesh, a part of the district of Chhindwara place Chandrapur, on States' reorgaisation, 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 Others7.

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 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.

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 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 Scheduled Caste category in the State of Jharkhand for all practical purposes including participation in open competition seeking public employment.

58. So far as the case of other appellants in Civil Appeals @ SLP (Civil) Nos. 3610-3615 of 2021 is concerned, there is no material 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. As noticed by us, 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, in our considered view, were migrants to the State of Jharkhand which would disentitle them in claiming the benefit of reservation in view of the judgment of the Constitution Bench of this Court of which a reference has been made(supra).

59. But taking note 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.

60. Consequently, the appeals deserve to succeed and we hold that the majority judgment of the High Court impugned dated 24th February, 2020 is unsustainable and is hereby set aside. We are also not in agreement with the minority judgment on principle and clarify that the person is entitled to claim the benefit of reservation in either of the successor State of Bihar or State of Jharkhand but would not be entitled to claim the privileges and benefits of reservation simultaneously in both the States and if that is permitted, it will defeat the mandate of Articles 341(1) and 342(1) of the Constitution.

61. Accordingly, the appellant Pankaj Kumar in Civil Appeal @ SLP(Civil) No. 13473 of 2020 shall 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. 3610-3615 of 2021, the order of termination of each of the appellant is hereby quashed and set aside and the appellants shall be reinstated in service with notional pay & allowances and shall not be entitled for arrears of salary upto the date of appointment/reinstatement.

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

63. Pending application(s), if any, stand disposed of.

................................J. (UDAY UMESH LALIT)

................................J.(AJAY RASTOGI)

NEW DELHI

AUGUST 19, 2021

1 1990(3) SCC 130

2 1994(5) SCC 244

3 2018(10) SCC 312

4 2004(9) SCC 481

5 2009(2) SCC 109

6 2001 (6) SCC 571

7 1994(6) SCC 241


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