Akhilesh Prasad vs Jharkhand Public Service Commission & Ors.

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

Allowing the appeal, the Court

HELD:

Per Uday Umesh Lalit, J. [For himself and Pamidighantam Sri Narasimha, J.]

1. The employees who opt for service under a successor State after reorganization, their existing service conditions would not be varied to their disadvantage and would stand protected by virtue of Section 73 of the Act. Further, subject to the condition that such person would not be entitled to claim the benefit of reservation simultaneously in both the successor States, such employees would be entitled to claim not only the benefit of reservation in the service of the successor State to which they had opted and were allocated, but they would also be entitled to participate in any subsequent open competition with the benefit of reservation. [Para 17][415-B-C]

2. The decision in Pankaj Kumar, was rendered by this Court on 19.8.2021, while the judgment presently under challenge was delivered by the High Court on 12.5.2021. The High Court thus did not have the benefit of the decision of this Court. The law having been settled in Pankaj Kumar, the judgment under appeal has to be read in light of the decision in Pankaj Kumar. It would therefore be immaterial whether or not the nature of limited departmental examination is to be taken as direct recruitment, as found by the Division Bench of the High Court. [Para 18][415D]

3. In order to encourage meritorious candidates who may be comparatively junior in service, a window of opportunity is opened through limited departmental examination. Those who pass the examination are entitled to have an accelerated promotion. This process does not change the character of movement to the higher post and it continues to be a promotional channel. The Single Judge of the High Court was therefore right in allowing the writ petition. The underlined portion from the order passed by the Single Judge shows that the matter was considered in the correct perspective. The Division Bench of the High Court was not justified in concluding that limited departmental examination was nothing but direct recruitment from the open market. Therefore, the appeal is allowed and judgment and order passed by the Division Bench is set aside, while the Order passed by the Single Judge of the High court is restored. [Paras 20 & 24][417-G-H; 418-A-B, H] Per S. RAVINDRA BHAT, J. (Concurring)

1. In my considered opinion, given that states reorganizations occur as a consequence of political demands, or as an articulation of regional aspirations, there is no agency of the individual (i.e., members of Scheduled Caste or Scheduled Tribe communities) in such eventuality. This situation is radically different from one, where a member of such community, voluntarily seeks opportunities outside her or his statein which case, the rule in Marri Chandra Shekhar Rao would apply. There is, consequently, an obligation on the part of Parliament, to provide clarity about the kind of protection, regarding the status of such individuals forced to chose one among the newly reorganized states, and ensure that they are not worse off as a result of reorganization. A different kind of involuntary movement was also contemplated in Marri Chandra Shekhar Rao, where this court had in fact commended Parliament (or the concerned state legislatures) to make provisions for the future 9 prospects of wards of members of Scheduled Castes or Scheduled Tribes who because of their conditions of public employment, have to go from one state to another. Furthermore, the duty to provide clarity and protection, generally speaking has to be consistent - i.e., in the case of one states’ reorganization, the protection should not be greater than in the case of reorganization of another state. That would defeat the command of Articles 14 and 15 (1) (i.e., in the latter case, there can possibly be discrimination on the ground of place of birth). In my opinion, this duty stems from a co-joint reading of Part I (Articles 1 to 4), Articles 14, 15(1), 341, and 342 of the Constitution, and the overarching concern that the individual should not be worse off, due to disruption not of her or his making. The duty of Parliament in such cases, is a Constitutional obligation, to ensure that no one individual or group is disadvantaged. [Para 10][425-A-F]

Pankaj Kumar v. State of Jharkhand & Ors. (2021) SCC Online SC 616 – Relied on

Sudhakar Vithal Kumbhare v. State of Maharashtra & Ors. 2001 (4) BomCR 582 : [2003] 5 Supp SCR 746; State of Maharashtra and Anr. v. Union of India & Anr. [1994] 1 Supp SCR 71; U.P. Public Service Commission, Allahabad v. Sanjay Kumar Singh (2003) 7 SCC 657; State of Jharkhand v. Bhadey Munda (2014)10 SCC

398 : [2014] 7 SCR 765; State of Mysore v. G. B. Purohit (1967) 1 SLR 753; Kumari Madhuri Patil and Another vs. Addl. Commissioner, Tribal Development and Others, (1994) 6 SCC 241 : [1994] 3 Suppl. SCR 50; All India Judges’ Association & Ors. v. Union of India and Ors. (2002) 4 SCC 247; Marri Chandra Shekhar Rao v. Dean Seth GS Medical College (1990) 3 SCC 130 : [1990] 2 SCR 843; Action Committee on Issue of Caste Certificate to Scheduled Castes and Scheduled Tribes in the State of Maharashtra and Anr. v. Union of India & Anr. (1994) 5 SCC 244 : [1994] Supp SCR 714 – referred to.