Pankaj Kumar vs State of Jharkhand & Ors.

Disposing of the appeals, the Court

HELD: 1.1 By introducing the Bihar Re-organisation Act, 2000, so far as the conditions of service of the serving employees is concerned, are indeed being protected by virtue of Section 73 read with Section 74 under Part VIII of the Act 2000 which clearly provides that such of the employees who were appointed immediately before the appointed date holding or discharging duties of any post or office in connection with the affairs of the existing State of Bihar in any area now falling in the successor State of Jharkhand shall continue to hold the same post or office in the successor State provided option has been exercised to remain in the State of Bihar, they shall be deemed to be duly appointed to the post or office of the successor State. As a consequence, such of the employees who are working immediately on or before the appointed date, i.e. 15th November, 2000 in those 18 districts which have been formed part of the State of Jharkhand in terms of Section 3 of the Act be deemed to be appointed in the respective successor State of Jharkhand, with their service conditions not to be varied to his disadvantage except with the previsous approval of the Central Government. [Para 48][564-B-E]

1.2 The scheme of the Act 2000 postulates that employees who are working immediately on or before the appointed date, in the State of Bihar, has either domicile of the districts that formed part of State of Jharkhand under Section 3 of the Act or opted or joined being junior in their respective seniority, stands absorbed in the successor State of Jharkhand and by virtue of a statutory instrument, their service conditions stand protected and became entitled to claim privileges and benefits to which the members of scheduled castes/scheduled tribes/OBC are entitled for in terms of the Presidential Order 1950, Constitution (Scheduled Castes)/(Scheduled Tribes) Order 1950 as amended from time to time. [Para 49][565-F-G]

1.3 There is a fundamental dichotomy in the submissions made by the counsel for the State of Jharkhand that the existing service conditions including benefit of reservation in the promotional cadre post shall not be varied to his disadvantage but he shall be considered to be a migrant to the State of Jharkhand while participating in public employment to compete in open/general category and asked to seek the benefit of reservation in the neighbouring State of Bihar, to hold different status in his parent State of Jharkhand after he became a member of service of the State of Jharkhand, serving for sufficient long time on and after the appointed day, i.e. 15th November, 2000 in the State is unsustainable in law and in contravention to the scheme of the Act 2000. [Para 52][567-D-E]

1.4 It will be highly unfair and pernicious to their interest if the benefits of reservation with privileges and benefits flowing thereof are not being protected in the State of Jharkhand after he is absorbed by virtue to Section 73 of the Act 2000 that clearly postulates not only to protect the existing service conditions but the benefit of reservation and privileges which he was enjoying on or before the appointed day, i.e. 15th November, 2000 in the State of Bihar not to be varied to his disadvantage after he became a member of service in the State of Jharkhand. [Para 53][567-FG]

1.5 The collective readings of the provisions of the Act, 2000 makes it apparent that such of the persons whose place of origin/domicile on or before the appointed day was of the State of Bihar now falling within the districts/regions which form a successor State, i.e. State of Jharkhand under Section 3 of the Act, 2000 became ordinary resident of the State of Jharkhand, at the same time, so far as the employees who were in public employment in the State of Bihar on or before the appointed day, i.e. 15th November, 2000 under the Act 2000, apart from those who are domicile of either of the district which became part of the State of Jharkhand, such of the employees who have submitted their option or employees who are junior in the cadre of their seniority as per the policy of the Government of India of which a reference has been made, either voluntarily or involuntarily call upon to serve the State of Jharkhand, their existing service conditions shall not be varied to their disadvantage and stands protected by virtue of Section 73 of the Act, 2000. [Para 54][568A-D]

1.6 Such of the employees who are members of the SC/ST/OBC whose caste/tribe has been notified by an amendment to the Constitution(Scheduled Castes)/(Scheduled Tribes) Order 1950 under Vth and VIth Schedule to Sections 23 and 24 of the Act 2000 or by the separate notification for members of other backward class category, benefit of reservation including privileges and benefits flowing thereof, shall remain protected by virtue of Section 73 of the Act 2000 for all practical purposes which can be claimed (including by their wards) for participation in public employment. [Para 55][568-D-E]

1.7 It is made clear that person is entitled to claim benefit of reservation in either of the successor State of Bihar or State of Jharkhand, but will not be entitled to claim the privileges and benefits of reservation simultaneously in both the successor States and if that is permitted, it would defeat the mandate of Articles 341(1) and 342(1) of the Constitution and those who are members of the reserved category and are resident of the successor State of Bihar, while participating in open selection in State of Jharkhand shall be treated to be migrants and it will be open to participate in general category without claiming the benefit of reservation and vice-versa. [Para 56][568-E-F]

1.8 The appellant in Civil Appeal @ SLP(Civil) No.13473 of 2020, being a serving employee in the State of Jharkhand by virtue of Section 73 of the Act 2000, would be entitled to claim the benefit of reservation including the privileges and benefits admissible to the members of Scheduled Caste category in the State of Jharkhand for all practical purposes including participation in open competition seeking public employment. [Para 57][568G-H; 569-B]

1.9 As regards appellants in Civil Appeals @ SLP (Civil) Nos. 3610-3615 of 2021 is concerned, there is no material placed by either of them on record to justify that how long they were residing in the districts which now form part of the successor State of Jharkhand and the advertisement of the year 2004 required that one has to submit a caste certificate issued by the competent authority of the State of Jharkhand and none of them produced the caste certificate. The present batch of appellants were appointed in the year 2005 as Constables against the post reserved for Scheduled Caste/Scheduled Tribe/OBC category in the State of Jharkhand, were migrants to the State of Jharkhand which would disentitle them in claiming the benefit of reservation. However, in view of the peculiar facts and circumstances of the case which, however, cannot be ignored, that the appellants had bonafidely submitted their application pursuant to an advertisement dated 13th January, 2004 issued by the State of Jharkhand holding selection for the post of Constable and it is not the case of the respondents that either of the appellant has misrepresented while participating in the selection process or the caste/tribe/OBC to which either of the appellant belongs is not being notified in the Constitution(Scheduled Castes)/(Scheduled Tribes) Order, 1950 which has been amended in reference to Sections 23 and 24 of the Act 2000 or the class of OBC which has been notified by the State of Jharkhand and once the appellants are appointed, after going through the process of selection served for 3- 4 years, their services came to be terminated in June, 2008 and who were never at fault have lost almost 13 years in litigation and could not secure employment at a later stage. Taking note of the peculiar facts and circumstances and the period of service rendered, while exercising our plenary power under Article 142 of the Constitution, to do complete justice, each of the appellant deserves indulgence of reinstatement in service on notional fixation of pay and allowances, etc. [Paras 58, 59][569-A-C, D-G]

1.10 The majority judgment of the High Court is unsustainable and is set aside. The minority judgment on principle is not concurred with. [Para 60][569-G-H; 570-A]

1.11 The appellant in Civil Appeal @ SLP(Civil) No. 13473 of 2020 would be appointed pursuant to his selection in reference to advertisement no. 11 of 2007 and he is entitled for his seniority as per his placement in the order of merit with notional fixation of pay & allowances and in Civil Appeals @ SLP(Civil) Nos. 36103615 of 2021, the order of termination of each of the appellant is quashed and set aside and the appellants would be reinstated in service with notional pay & allowances and would not be entitled for arrears of salary upto the date of appointment/reinstatement. [Para 61][570-B-D]

Marri Chandra Shekhar Rao v. Dean, Seth G.S.

Medical College and Others (1990) 3 SCC 130 : [1990]

2 SCR 843; State of Maharashtra and Anr. v. Union of India and Another (1994) 5 SCC 244 : [1994] 1 Suppl. SCR 714; Bir Singh v. Delhi Jal Board and Others (2018)

10 SCC 312 : [2018] 10 SCR 513; Sudhakar Vithal Kumbhare v. State of Maharashtra and Others (2004)

9 SCC 481 : [2003] 5 Suppl. SCR 746; Sau Kusum v. State of Maharashtra and Others (2009) 2 SCC 109 : [2008] 17 SCR 675; M.C.D. v. Veena and Others (2001)

6 SCC 571 : [2001] 1 Suppl. SCR 493; Kumari Madhuri Patil and Another v. Addl. Commissioner, Tribal Development and Others (1994) 6 SCC 241 : [1994] 3 Suppl. SCR 50 – referred to.