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SUPREME COURT OF INDIA
UDAY UMESH LALIT, AJAY RASTOGI, JJ.
PANKAJ KUMAR - APPELLANT(S)
VERSUS
STATE OF JHARKHAND & ORS. - RESPONDENTS
CIVIL APPEAL NO(S). 4864-4870 OF 2021 (Arising out of SLP(Civil) No(s). 3610-3615 of 2021, 13473 of 2020)
Decided on : 19-08-2021
(A) Constitution of India – Article 341 and 342 – Constitution (Scheduled Castes)/(Scheduled Tribes) Order, 1950 – Bihar Reorganisation Act, 2000 – Sections 23 and 24 – Reservation – Object of Articles 341(1) and 342(1) of Constitution is to provide additional protection to members of SC/ST having regard to social and economical backwardness from which they suffer – In specifying castes, race or tribes, President has been authorised to limit notification to part of groups with the castes – 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 – Consideration for specifying a Scheduled Caste or Scheduled Tribes or Backward Classes in any given State depends on nature and extent of disadvantages and social and educational backwardness/hardships suffered by members concerned of class in State specific but that may be absent in another State to which the person has migrated – Whenever States’ reorganization has taken place in 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 reorganized States/Union Territories – Intention of Parliament was to extend benefits of reservation in relation to State specific/Union Territory only to castes, races or tribes as mentioned in Presidential Orders. (Paras 24, 26, 27 and 28)
(B) Reservation – Identification – To identify that person is a member of 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 members of castes/tribes were subjected to and is identified in Presidential Notification of 1950 and caste certificate issuance authority has to take into consideration place of origin/domicile and resident of State to conduct a discreet enquiry or inquiry contemplated under scheme of rules for the purpose of recording a finding as to whether incumbent who claimed to be a member of Scheduled Caste or Scheduled Tribe or OBC, as the case may be, is eligible and entitled for issuance of caste certificate as has been claimed by him and once a certificate is issued to him, he becomes a member of 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 – At the same time, such of castes/tribes which are region based, incumbent has to furnish in first instance place of origin/domicile of that particular region where 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 caste certificate is issued to incumbent, his wards also became entitled to claim privileges and benefits of reservation admissible under law throughout the State. (Paras 31 and 32)
(C) Bihar Reorganisation Act, 2000 – Section 74 – Constitution of India – Article 341 and 342 – Constitution (Scheduled Castes)/(Scheduled Tribes) Order, 1950 – Reservation – Person belonging to Scheduled Castes/Scheduled Tribes/OBC of State, on migration to another State voluntarily or involuntarily, will not be entitled to claim benefits of reservation including privileges and benefits admissible to member of Scheduled Castes/Scheduled Tribes/OBC even though, caste or tribe of same nomenclature is notified in latter State(State where migrated) and if that is being permitted, very expression as mandated under Articles 341(1) and 342(1) of Constitution in “relation to the State” would become otiose. (Para 41)
(D) Bihar Reorganisation Act, 2000 – Section 74 – Reservation – Such of employees who are members of SC/ST/OBC whose caste/tribe has been notified by an amendment to Constitution(Scheduled Castes)/(Scheduled Tribes) Order 1950 under Vth and VIth Schedule to Sections 23 and 24 of Act 2000 or by 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 Act 2000 for all practical purposes which can be claimed (including by their wards) for participation in public employment – Person is entitled to claim benefit of reservation in either of successor State of Bihar or State of Jharkhand, but will not be entitled to claim benefit of reservation simultaneously in both successor States and those who are members of reserved category and are resident of 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 benefit of reservation and vice-versa – Majority judgment of High Court impugned dated 24th February, 2020 is unsustainable and hereby set aside. (Paras 55, 56 and 60)
Facts of the case:
Instant batch of appeals have been preferred assailing the judgment and Order passed by the High court of Jharkhand dated 24th February, 2020 by three Judges with majority of 2:1. Question that emerges for consideration in 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., 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.
Findings of Court:
Present batch of appellants were appointed in year 2005 as Constables against 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.
Result : Appeals allowed.
JUDGMENT :
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 24th February, 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
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