1

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO(S). 4864 OF 2021

(Arising out of SLP(Civil) No(s). 13473 of 2020)

PANKAJ KUMAR ….APPELLANT(S)

VERSUS

STATE OF JHARKHAND & ORS. ….RESPONDENT(S)

WITH

CIVIL APPEAL NO(S). 4865-4870 OF 2021

(Arising out of SLP(Civil) No(s). 3610-3615 of 2021)

J U D G M E N T

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

24

thFebruary, 2020 by three Judges with majority of 2:1.

2

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 da y, i.e. 15

th 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 21

st 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

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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 11

th 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

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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

13

th 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.

15

th November, 2000 and after going through the process of

selection held pursuant to an advertisement dated 13

th 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

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not be entitled to claim benefit of reservation of SC/ST/OBC in the

successor State of Jharkhand, by an Order dated 16

th 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

30

th 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.

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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 27

th November, 1974 and from the

year 1989, he is the resident of District Ranchi where he obtained

his education and later appointed on 21

st 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 V

th (Part VIA) and VI

th (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,

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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 Others

1;

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 Another

2; and Bir Singh Vs. Delhi

Jal Board and Others

3 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.

1

1990(3) SCC 130

2

1994(5) SCC 244

3

2018(10) SCC 312

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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 o nce the President

pursuant to Section 23 and 24 of the Act, 2000 has notified the V

th

and VI

th 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.

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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 Others

4 and Sau Kusum Vs. State of

4

2004(9) SCC 481

10

Maharashtra and Others

5, 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

22

nd 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,

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2009(2) SCC 109

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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

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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. 15

th 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. 15

th

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

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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. 15

th 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,

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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 22

nd

15

March, 1977 followed with Government Order dated 22

nd 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. 15

th 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.

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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

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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

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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 suffer ed 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

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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 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

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(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

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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

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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. 15

th 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

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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. 15

th

November, 2000 pursuant to Sections 23 and 24 of the Act enacted

V

th(Part VIA) and VI

th(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

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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.

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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 o f

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 V

th and VI

th Schedule in

terms of Sections 23 and 24 of Act 2000 in November 2000, those

very castes/tribes/OBC with the same n omenclature 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

26

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.

27

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 f or 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

28

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 th en some consideration is

29

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 Others

6 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 a nd 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 b ut 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

6

2001 (6) SCC 571

30

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.

31

42. Learned counsel for the respondents has placed heavy reliance

on the Government Order issued by the Ministry of Home Affairs

dated 22

nd March, 1977 followed with 18

th November, 1982, 6

th

August, 1984 and 22

nd 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 22

nd 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 22

nd February, 1985 is referred hereunder:-

“It is also clarified that a Scheduled Cast e/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

32

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 member s 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.

33

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

34

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 em ployees 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 / Utta rakhand,

35

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

36

(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

37

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., 15

th 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

38

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 of ficers 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.”

39

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

40

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’

41

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 Others

7.

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

7

1994(6) SCC 241

42

State of Jharkhand, serving for sufficient long time on and after the

appointed day, i.e. 15

th 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. 15

th 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

43

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. 15

th

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 e mployees 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 V

th and VI

th 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

44

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.

45

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 13

th January, 2004 issued by the State of

Jharkhand holding selection for the post of Constable and it is not

46

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 24

th

February, 2020 is unsustainable and is hereby set aside. We are

47

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 o f

appointment/reinstatement.

48

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