Holding

Employees transferred to a successor state under Section 73 of the Bihar Reorganisation Act, 2000 retain their reservation benefits, and a limited departmental examination is a promotional channel, making the appellant entitled to the ST reservation.

Summary

The appellant, a Cooperative Development Officer appointed under the Scheduled Tribe (ST) category in undivided Bihar, was transferred to the successor State of Jharkhand after the Bihar Reorganisation Act, 2000. He applied for promotion to Deputy Collector through a limited departmental examination that required a caste certificate issued by a Jharkhand authority, which he did not possess, and was declared unsuccessful despite meeting the ST cut‑off. A writ petition challenging the non‑selection was allowed by a Single Judge of the Jharkhand High Court, but a Division Bench reversed the decision, holding that the lack of a Jharkhand certificate barred him from claiming ST status for the exam. The Supreme Court examined whether Section 73 of the Bihar Reorganisation Act protects the appellant’s service conditions, including reservation, and whether the limited departmental exam constitutes promotion or fresh recruitment. Relying on the earlier decision in Pankaj Kumar, the Court held that employees transferred to a successor state retain their reservation benefits and that the limited exam is a promotional channel, not direct recruitment. Consequently, the appellant is entitled to the reservation benefit, the Division Bench judgment was set aside, and the Single Judge’s order was restored.

Issues considered

Whether an employee whose service was transferred to a successor state under the Bihar Reorganisation Act, 2000 is entitled to reservation benefits in a limited departmental examination in that state.
Whether Section 73 of the Bihar Reorganisation Act, 2000 shields the employee’s service conditions, including reservation, from being varied to his disadvantage.
Whether a limited departmental examination is a mode of promotion or a fresh recruitment for the purposes of applying reservation provisions.
Whether the requirement of a caste certificate issued by a Jharkhand authority is a mandatory condition for claiming ST status in the examination.

Legislation cited

Bihar Reorganisation Act, 2000s. 73, s. 74

Subjects

Service lawBihar Reorganisation ActSection 73ReservationScheduled TribeLimited departmental examinationPromotionSuccessor stateState bifurcation

Judgment

400 [2022]REPORTS
SUPREME COURT 19 S.C.R. 400 [2022] 19 S.C.R.

A AKHILESH PRASAD
v.
JHARKHAND PUBLIC SERVICE COMMISSION & ORS.
(Civil Appeal No. 3180 of 2022)
APRIL 26, 2022
B
[UDAY UMESH LALIT, S. RAVINDRA BHAT AND
PAMIDIGHANTAM SRI NARASIMHA, JJ.]
Service Law – Bihar Reorganisation Act, 2000 – Ss. 73 and
74 – Services after reorganisation of State – Appellant cleared the
Cooperative Development Officers exam held in 1994 conducted
C
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
D 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
E
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
F 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 Co-
operative Department under the State, but not treating him as
reserved category i.e. scheduled tribe for the purpose of limited
G
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
H in State of Jharkhand, the appellant could not be said to be
400
AKHILESH PRASAD v. JHARKHAND PUBLIC SERVICE 401
COMMISSION & ORS.

belonging to the reserved category of STs for the purposes of limited A
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
B
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 C
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
D
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 E

HELD:
Per Uday Umesh Lalit, J. [For himself and Pamidighantam
Sri Narasimha, J.]
1. The employees who opt for service under a successor F
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
G
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]
H
402 SUPREME COURT REPORTS [2022] 19 S.C.R.

A 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
B
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][415-
D]
3. In order to encourage meritorious candidates who may
C 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
D 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
E 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)
F
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
G 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
H individuals forced to chose one among the newly reorganized
AKHILESH PRASAD v. JHARKHAND PUBLIC SERVICE 403
COMMISSION & ORS.

states, and ensure that they are not worse off as a result of A
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
B
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 C
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
D
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
E
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 F
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. G
(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

H
404 SUPREME COURT REPORTS [2022] 19 S.C.R.

A in the State of Maharashtra and Anr. v. Union of India
& Anr. (1994) 5 SCC 244 : [1994] Supp SCR 714 –
referred to.
Case Law Reference
[2003] Supp 5 SCR 746 referred to Para 16
B [1994] Supp 1 SCR 71 referred to Para 16
[1994] 3 Suppl. SCR 50 referred to Para 16
[1994] Supp SCR 714 referred to Para 6
[2014] 7 SCR 765 referred to Para 7
[1990] 2 SCR 843 referred to Para 8
C
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 3180
of 2022.
From the Judgment and Order dated 12.05.2021 of the High Court
of Jharkhand at Ranchi in L.P.A. No. 609 of 2017.
D Manoj Tandon, Kumar Shivam, Mayank Sapre, Rohit Anil Rathi,
Advs. for the Appellant.
Arunabh Chowdhury, Sr. Adv., Himanshu Shekhar, Parth Shekhar,
Ms. Pragya Baghel, Kumar Anurag Singh, Abhishek Roy, Ms. Tulika
Mukherjee, Akshat Singh, Zain Khan, Sanjeev Singh, Rameshwar Prasad
E Goyal, Advs. for the Respondents.
The Judgments* of the Court were delivered by
UDAY UMESH LALIT, J.
1. Leave granted.
F 2. This appeal challenges the judgment and final order dated
12.05.2021 passed by the Division Bench of High Court1 in LPA No.609
of 2017.
3. In the Graduate Level (Special) Competitive Examination held
in the year 1994 for filling up the posts of Cooperative Development
G Officers, the then Bihar Public Service Commission vide letter dated
24.07.1995 recommended the name of the appellant, who was at serial
No. 98 in the merit list, under Scheduled Tribe (‘ST’, for short) category.
1
High Court of Jharkhand at Ranchi.
*Ed. Note : There were two judgments—One pronounced by Uday Umesh Lalit, J. for
himself and Pamidighantam Sri Narasimha, J. – and the other pronounced by S. Ravindra
H Bhat, J.
AKHILESH PRASAD v. JHARKHAND PUBLIC SERVICE 405
COMMISSION & ORS. [UDAY UMESH LALIT, J.]

The claim that the appellant belonged to ST category (Gond) was A
supported by a Certificate issued to that effect on 03.06.1995 by the
Scrutiny Officer, Sonpur (Saran) which place now falls in the newly
carved State of Bihar after reorganization of States. Later, appointment
letter dated 10.11.1995 was issued to the selected candidates including
the appellant. The appropriate entry in the service book shows the name
B
and category of the appellant as belonging to ST (Gond).
4. The then State of Bihar was bifurcated as a result of Bihar
Reorganization Act, 2000 [Act 30 of 2000] (‘the Act’, for short), which
came into force on 15.11.2000. The erstwhile State of Bihar was
bifurcated in successor States viz. State of Bihar comprising of 38 districts
and newly formed State of Jharkhand comprising of 18 districts. Sections C
73 and 74 of the Act are as under:-
“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 D
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 E
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 F
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. G
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 H
406 SUPREME COURT REPORTS [2022] 19 S.C.R.

A 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
B
affecting the continuance in such post or office.”
5. After reorganization of the States, the appellant’s service was
allocated to the successor State of Jharkhand and since then the appellant
has been in the service of State of Jharkhand.
C 6. On 14.08.2008, a letter was issued by the Principal Secretary,
Government of Jharkhand to all the Secretaries of departments regarding
reservation in promotion in various categories of services under the State
of Jharkhand. Paragraphs 1 and 4 of the communication were as under:-
“Sir, with reference to above subject, I, as directed, have to submit
D that, certain departments are expecting guidelines/counselling from
this department on the following point:
“The benefit of reservation in promotions should only be given
to the government servants of Scheduled Caste / Scheduled
Tribes if they are permanent residents of Jharkhand State, even
E if they were appointed in undivided Bihar.”
… … …
4. In this connection, the State Government, after due deliberations,
has decided as under:
“The reserved category of employees, who were appointed in
F
reserved categories prior to constitution of State and were posted
in Jharkhand State on the basis of division of cadre and they are
permanent residents of Bihar State, will be unaffected and they
shall be considered as government employees of reserved
category.”
G 7. Advertisement No.9 of 2010 was issued by the Jharkhand Public
Service Commission (‘the Commission’, for short) for filling up the posts
of Deputy Collectors through limited departmental examination. Said
Advertisement issued on 09.10.2010, however, prescribed that the benefit
of reservation would be extended only to those who submit the
H appropriate caste Certificate from the Sub-Divisional Officer posted in
AKHILESH PRASAD v. JHARKHAND PUBLIC SERVICE 407
COMMISSION & ORS. [UDAY UMESH LALIT, J.]

State of Jharkhand. The appellant having offered his candidature for the A
limited departmental examination, the same was forwarded by the office
of the Registrar, Cooperative Societies, Jharkhand to the Commission.
8. In the results of the examination declared on 04.05.2013, the
appellant was declared unsuccessful though he had secured 123.68 marks
as against the cut-off at 113.70 for ST category. B
9. The appellant challenged his non-selection by filing Writ Petition
(S) No.3480 of 2013, which was allowed by the Single Judge of the
High Court by his judgment and order dated 22.09.2017 with following
observations:-
“8. The aforesaid provision makes it abundantly clear that so far C
as the limited examination of the State of Jharkhand is concerned,
the benefit of reservation may be extended to such candidates
also, who are born on the reserved category post under the unified
State of Bihar. The appointment to the post of Deputy collector
may be a fresh appointment, but the process of the said appointment D
has to be seen. This examination is not a general open competitive
examination rather it is open for in service candidates of
Government of Jharkhand only. Thus, the persons who are not
employed under the State of Jharkhand, are not entitled to appear
in the said examination. That means only a Government employee
is entitled to appear in the said examination. The said employee, if E
succeeds in the examination and is appointed on the post of Deputy
Collector, his past services with the State are also counted for all
purposes. Thus, it is in continuation of his earlier service. In the
case in hand, the petitioner was already working in the co-operative
Department as a reserved category candidate and thereafter by F
virtue of his employment in the Cooperative Department under
the State of Jharkhand, he qualified to appear in the examination.
Admittedly he is a reserved category Scheduled tribe candidate
and after bifurcation of the State he was allocated the Jharkhand
cadre. He carried his reserved category with him after bifurcation
also. Thus, the Resolution number 4722 dated 14.08.2008 applies G
to the Petitioner. The State acknowledges the petitioner as
Scheduled Tribe category while he is working in Co-operative
Department under the State, but not treating him as reserved
category i.e. scheduled tribe for the purpose of limited examination,
is not acceptable to this Court neither his tenable in the eyes of H
408 SUPREME COURT REPORTS [2022] 19 S.C.R.

A law. The appointed cannot be said to be a fresh appointment. The
petitioner, after reorganization of the State, was allocated the
Jharkhand State cadre as a Scheduled Tribe candidate. Thus, his
status as Scheduled Tribe candidate for the purpose of service
has to be maintained. Thus, the claim of the Respondents that the
Petitioner cannot be treated as a scheduled tribe candidate is not
B
tenable in the eyes of law. Similar view has been reiterated by
this Court in W.P. (s)No.488 of 2013. The reliance has been placed
by the Respondents on the judgment delivered by this Court in
Division Bench is of no help to them as they were on different
ground and the present case is not a case of submission of
C certificate after the cut-off date.
9. As a cumulative effect of the aforesaid rules, guidelines and
judicial pronouncements, I hereby direct the respondent - JPSC
to consider the case of the petitioner for appointment on the post
of Deputy Collector, pursuant to the Advertisement No. 09/10, as
D a Reserved category (scheduled tribe). The respondents are
directed to consider the candidature of the petitioner on the post
of Deputy Collector, if he is found to be within consideration zone
on the basis of marks obtained by him vis-a-vis other candidates
of his category within a period of two months from the date of
receipt of a copy of this order.”
E
(Emphasis added)
10. The Commission as well as State of Jharkhand being aggrieved,
preferred LPA No.609 of 2017 and LPA No.164 of 2018 respectively
challenging the view taken by the Single Judge. It was submitted that as
F required by condition No.13 of the Advertisement, the caste certificate,
as well as the proof of residence had to be obtained from Sub-Divisional
Magistrate posted within the jurisdiction of State of Jharkhand, and the
appellant having failed to comply with such requirement, he could not be
considered as a candidate belonging to the reserved category in State of
Jharkhand.
G
In response, it was submitted on behalf of the appellant that the
limited competitive examination could not be construed to be a fresh
appointment; rather it was a case of promotion to the higher post and as
such the appellant who was already in the service under State of
Jharkhand was entitled to offer his candidature as a candidate belonging
H to ST category.
AKHILESH PRASAD v. JHARKHAND PUBLIC SERVICE 409
COMMISSION & ORS. [UDAY UMESH LALIT, J.]

11. Following questions were framed by the Division Bench of A
the High Court for its consideration: -
“(i) Whether the appointment through limited competitive
examination is a fresh appointment or by way of promotion?
(ii) Whether the provision of Section 73 of the Bihar
Reorganization Act, 2000 will be applicable in the process B
of selection to be made through limited competitive
examination after final order passed by the Central
Government under Section 72(2) of the Act?
(iii) Whether condition of advertisement can be allowed to be
assailed by the candidates who have participated in the C
process of selection but declared unsuccessful?
(iv) Whether in the matter of fresh appointment, reservation
can be said to be a condition of service for making applicable
the provision of Section 73 of the Bihar Reorganization Act,
2000?” D
12. The Division Bench of the High Court found that 25% of
posts to be filled through the limited competitive examination would be
by way of fresh appointment and as such, the appellant could not rely
upon the provisions of Sections 72 and 73 of the Act. Since the appellant
had failed to comply with condition No.13 of the Advertisement and E
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.
13. The correctness of the decision is presently under challenge. F
14. Mr. Manoj Tandon, learned counsel appearing for the appellant
submits inter alia that :-
(a) The ST known as Gond in the then undivided State of Bihar,
after reorganization is part of the Constitution [Scheduled
Tribes] Order, 1950 at Sl. No.10 in respect of newly carved G
State of Bihar as well as at Sl. No.11 in respect of State of
Jharkhand.
(b) The appellant having been in the service of the then
undivided State of Bihar and his services having been
H
410 SUPREME COURT REPORTS [2022] 19 S.C.R.

A allocated to State of Jharkhand, is entitled to the benefits
and protection under Sections 72 and 73 of the Act.
(c) The status as a person belonging to ST category would
entitle him to claim benefit of reservation in promotion even
with respect to service under State of Jharkhand after
B reorganization.
d) The nature of limited departmental examination is nothing
but accelerated promotion; in that as against the regular
mode of promotion those who are competent and are found
meritorious in the limited departmental examination, can be
C promoted even if they are comparatively juniors.
e) A limited departmental examination can be taken only by
those who are presently in service and is not available for
any direct recruitment from open market.
f) Reliance is placed on the decision of this Court in Pankaj
D Kumar v. State of Jharkhand2.
15. Mr. Arunabh Chowdhury, learned Additional Advocate General
appearing for State of Jharkhand and Mr. Himanshu Shekhar, learned
Advocate appearing for the Commission have reiterated the submissions
which were accepted in the decision under challenge. It is submitted
E that condition No.13 was an integral part of the process of selection and
non-compliance of said condition would disentitle a candidate from
claiming status as one belonging to ST in the State. To a pointed query
whether the appellant would be entitled to claim that he belonged to said
reserved category if a regular promotion was in issue, the learned counsel
F fairly accepted that he would certainly be so entitled.
16. In Pankaj Kumar,2 the father of the appellant belonged to
District Patna (which, after reorganization, is now part of successor
State of Bihar) but resided in Hazaribagh (which is now part of State of
Jharkhand) where the appellant was born. The appellant was appointed
as Assistant Teacher on 21.12.1999 and after reorganization, his service
G
was allocated to State of Jharkhand. While serving as a teacher, he
appeared as a member of SC category in the Combined Civil Services
Examination, and though his name appeared at Sl. No.5 against 17
vacancies reserved for SC Category, he was not selected on the ground

2
H 2021 (9) SCALE 576
AKHILESH PRASAD v. JHARKHAND PUBLIC SERVICE 411
COMMISSION & ORS. [UDAY UMESH LALIT, J.]

that he being permanent resident of Patna, he would be treated as a A
migrant in State of Jharkhand.
In this factual backdrop, the question that arose for consideration
was as under:
“46. The question that emerges for our consideration in the instant
appeals is whether a person, who has been a resident of the State B
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 C
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 D
Presidential Order 1950 in the integrated State of Bihar.”
Thereafter, the effect of Sections 73 and 74 of the Act was
considered and it was observed:
“49. The scheme of the Act 2000 postulates that employees who E
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 F
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 v. State of G
Maharashtra & Ors., 2004 (9) SCC 481 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 H
412 SUPREME COURT REPORTS [2022] 19 S.C.R.

A 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
B
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
C 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
D
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
E would continue to get the same benefits despite bifurcation thereof
in terms of the States Reorganization 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
F
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
G 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
H Tribe known as Halba/Halbi. The tribe had its origin in District
AKHILESH PRASAD v. JHARKHAND PUBLIC SERVICE 413
COMMISSION & ORS. [UDAY UMESH LALIT, J.]

Chhindwara region which is a part of State of Madhya Pradesh, a A
part of the district of Chhindwara place Chandrapur, on States’
reorganization, 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
B
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, C
1994 (6) SCC 241.
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 D
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
neighboring 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 E
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 F
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 G
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 H
414 SUPREME COURT REPORTS [2022] 19 S.C.R.

A 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
B
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
C 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
D 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
E 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
F 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
G 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
H including the privileges and benefits admissible to the members of
AKHILESH PRASAD v. JHARKHAND PUBLIC SERVICE 415
COMMISSION & ORS. [UDAY UMESH LALIT, J.]

Scheduled Caste category in the State of Jharkhand for all practical A
purposes including participation in open competition seeking public
employment.”
17. As has been clarified in the decision in Pankaj Kumar2, such
of the employees who opt for service under a successor State after
reorganization, their existing service conditions would not be varied to B
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 C
in any subsequent open competition with the benefit of reservation.
18. It must be stated that the decision in Pankaj Kumar2 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 D
having been settled in Pankaj Kumar2, the judgment under appeal has
to be read in light of the decision in Pankaj Kumar2. 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. E
19. However, in order to have clarity in the matter, it must be
noted that the benefit of reservation was claimed in the limited
departmental examination for the purpose of promotion to the next higher
level. It must therefore be relevant to consider the nature of such limited
departmental examination and what it seeks to achieve as against direct F
recruitment from the open market, where a person who was not part of
the concerned service, gets a chance to offer his candidature and enter
the service under a State for the first time. Limited departmental
examination affords an opportunity for persons who are already in service
at a lower level to have accelerated promotion depending upon the merit
of such candidates. In All India Judges’ Association & Ors. v. Union G
of India and Ors.3, the issue was considered in paragraphs 27 and 28
as under:

3
(2002) 4 SCC 247 H
416 SUPREME COURT REPORTS [2022] 19 S.C.R.

A “27. Another question which falls for consideration is the method
of recruitment to the posts in the cadre of Higher Judicial Service
i.e. District Judges and Additional District Judges. At the present
moment, there are two sources for recruitment to the Higher
Judicial Service, namely, by promotion from amongst the members
of the Subordinate Judicial Service and by direct recruitment. The
B
subordinate judiciary is the foundation of the edifice of the judicial
system. It is, therefore, imperative, like any other foundation, that
it should become as strong as possible. The weight on the judicial
system essentially rests on the subordinate judiciary. While we
have accepted the recommendation of the Shetty Commission
C which will result in the increase in the pay scales of the subordinate
judiciary, it is at the same time necessary that the judicial officers,
hard-working as they are, become more efficient. It is imperative
that they keep abreast of knowledge of law and the latest
pronouncements, and it is for this reason that the Shetty
Commission has recommended the establishment of a Judicial
D
Academy, which is very necessary. At the same time, we are of
the opinion that there has to be certain minimum standard,
objectively adjudged, for officers who are to enter the Higher
Judicial Service as Additional District Judges and District Judges.
While we agree with the Shetty Commission that the recruitment
E to the Higher Judicial Service i.e. the District Judge cadre from
amongst the advocates should be 25 per cent and the process of
recruitment is to be by a competitive examination, both written
and viva voce, we are of the opinion that there should be an
objective method of testing the suitability of the subordinate judicial
officers for promotion to the Higher Judicial Service. Furthermore,
F
there should also be an incentive amongst the relatively junior and
other officers to improve and to compete with each other so as to
excel and get quicker promotion. In this way, we expect that the
calibre of the members of the Higher Judicial Service will further
improve. In order to achieve this, while the ratio of 75 per cent
G appointment by promotion and 25 per cent by direct recruitment
to the Higher Judicial Service is maintained, we are, however, of
the opinion that there should be two methods as far as appointment
by promotion is concerned : 50 per cent of the total posts in the
Higher Judicial Service must be filled by promotion on the basis
of principle of merit-cum-seniority. For this purpose, the High
H
AKHILESH PRASAD v. JHARKHAND PUBLIC SERVICE 417
COMMISSION & ORS. [UDAY UMESH LALIT, J.]

Courts should devise and evolve a test in order to ascertain and A
examine the legal knowledge of those candidates and to assess
their continued efficiency with adequate knowledge of case-law.
The remaining 25 per cent of the posts in the service shall be
filled by promotion strictly on the basis of merit through the limited
departmental competitive examination for which the qualifying
B
service as a Civil Judge (Senior Division) should be not less than
five years. The High Courts will have to frame a rule in this regard.
28. As a result of the aforesaid, to recapitulate, we direct that
recruitment to the Higher Judicial Service i.e. the cadre of District
Judges will be:
C
(1)(a) 50 per cent by promotion from amongst the Civil Judges
(Senior Division) on the basis of principle of merit-cum-seniority
and passing a suitability test;
(b) 25 per cent by promotion strictly on the basis of merit through
limited competitive examination of Civil Judges (Senior Division) D
having not less than five years’ qualifying service; and
(c) 25 per cent of the posts shall be filled by direct recruitment
from amongst the eligible advocates on the basis of the written
and viva voce test conducted by respective High Courts.
(2) Appropriate rules shall be framed as above by the High E
Courts as early as possible.”
(Emphasis added)
20. By very nature, the promotion to the next higher level is from
and amongst those who are at a lower level in the service. The avenue
F
of promotion is not available to persons from the open market, which
talent is to be garnered through direct recruitment. The promotion as a
channel to reach the higher level is only available to the persons already
belonging to the service. In normal circumstances, the promotion would
go by the concept of merit linked with seniority subject to suitability. In
order to encourage meritorious candidates who may be comparatively G
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
H
418 SUPREME COURT REPORTS [2022] 19 S.C.R.

A 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.
B 21. Before we part, we must deal with some of the observations
in Pankaj Kumar2.
22. In the instant case and in the case of Pankaj Kumar,2 the
appellants belonged to a particular community or tribe which was specified
in the erstwhile State of Bihar as Scheduled Castes/ Scheduled Tribes
C when they entered public service in the erstwhile State of Bihar. The
appellants in both the cases were allocated to the service under State of
Jharkhand though they belonged to the areas which after re-organization
are now part of the successor State of Bihar. By virtue of Sections 73
and 74 of the Act, they could certainly claim benefit in the service under
the newly carved State of Jharkhand. On the strength of the view taken
D in Pankaj Kumar2, the entitlement in a fresh service in State of
Jharkhand as well as in accordance with the view taken by us in the
instant case, the entitlement in the limited departmental examination in
State of Jharkhand is definitely made out. The basis for their entitlement
is primarily because of Sections 73 and 74 of the Act. It is quite possible
E that the progeny of such persons may have stayed back or may later
decide to go back to their roots, that is to say, to the area which now falls
in the newly carved State of Bihar; and since their lineage is from that
area and the State, they may contend that they are entitled to benefits of
reservation in the newly carved State of Bihar in relation to which State,
the community that they belong, is a Scheduled Caste/ Scheduled Tribe.
F Paragraph 55 of the decision in Pankaj Kumar2 is capable of being
read as conferring entitlement on the wards or the progeny of the
appellants in State of Jharkhand alone where in contradistinction to their
lineage, they can claim to have connection only through their parent(s)
and the effect of the provisions of the Act.
G 23. It must be stated that the entitlement of the progeny or the
wards of the appellant in State of Jharkhand had not strictly arisen for
consideration in Pankaj Kumar2. In our view, the issue, if any, can and
must be gone into in detail in an appropriate case.
24. We, therefore, allow this appeal and set aside the judgment
H and order passed by the Division Bench of the High Court and restore
AKHILESH PRASAD v. JHARKHAND PUBLIC SERVICE 419
COMMISSION & ORS. [UDAY UMESH LALIT, J.]

the judgment and order dated 22nd September 2017 passed by the Single A
Judge of the High Court. No costs.

S. RAVINDRA BHAT, J.
1. I have gone through the judgment of Justice U.U. Lalit, and B
agree with his reasoning and conclusions. In addition, there are some
other reasons, which I feel are necessary, and need to be noticed, in the
context of this case. I proceed with those reasons, hereafter.
2. The framers of the Constitution were acutely aware of the
existing divide within Indian society by reason of caste and other factors. C
Millennia old layered caste realities which had resulted in generations of
exploitation and oppression of sections of society was sought to be undone
through the Constitution, which we gave onto ourselves. To achieve this
end: of equalizing society, the Indian Constitution makes elaborate
provisions – not merely by declaring the right to equality, which is so
essential in every democracy – but in also making provisions ensuring D
that the erstwhile oppressed classes or sections of citizens are given
benefits which would ensure their full and effective participation in society
and governance. Apart from making special provisions under Articles
15 and 16, the methodology for identification of Scheduled Castes and
Scheduled Tribes has been provided for the purpose through Articles E
341 and 342 of the Constitution. Furthermore, these provisions also direct
that any change or amendment to the Presidential Orders (initially issued
in the year 1950) can be only through future Parliamentary enactments
and not by any other mode, thereby ensuring that local influences and
prejudices within states do not prevail. The special protections to
Scheduled Castes and Scheduled Tribes is also manifest in the protection F
of the areas in which they inhabit, such as Fifth and Sixth Scheduled
Areas.
3. While this is so, it is also a reality that ours is not a nation of
indestructible states - it is often described as an indestructible union of
destructible states. This means that as and when demands are made by G
sections of society, which feel the need for separate states due to local
aspirations, Parliament, in consultation with the concerned State through
their elected assemblies, effects reorganisation of states by law. This
reorganisation inevitably has the effect of disrupting pre-existing
arrangements. In this litigation we are concerned with the disruption
H
420 SUPREME COURT REPORTS [2022] 19 S.C.R.

A caused with respect to the service benefits of existing employees and
officials in the erstwhile state of Bihar, which was bifurcated by the
Bihar Reorganisation Act in 2000, and its effect on the respondent.
4. The Constitution uses the expression “in relation to”, in both
Articles 341 and 342, while prescribing the mode for determination of
B Scheduled Castes and Scheduled Tribes, for the purposes of the
Constitution. Quite naturally, the Constitution makers decided that the
State or Union Territory ought to be the unit in relation to which the
backwardness of the relative backwardness of communities is to be
determined for notifying one or some of them as Scheduled Castes and
Scheduled Tribes. In other words, the determination as to whether a
C community can be notified as a Scheduled Caste or Tribe, has to be with
respect to the territory. From the manner in which the Presidential Order
(both in respect to Scheduled Castes and Scheduled Tribes, for states
and union territories) issued in 1950 has notified communities, it is evident
that an elaborate and extensive exercise was undertaken. In some
D instances, communities or castes have been notified as Scheduled Castes
or Scheduled Tribes, only in respect of certain districts in a state or even
in relation to certain taluks and in all others, it is in relation to entire
states.
5. Interestingly, the present case highlights an issue which conflates
E two issues: on the one hand, the determination of a community as a
Scheduled Caste or a Scheduled Tribe in relation to a certain specified
area or territory, given that the area or territory has been determined by
the Constitution to be a unit of the State or Union territory; the other is
the reality of political divisions of states through bifurcation or
reorganisation (as the Parliament has chosen to express it), which has
F been occasioned a number of times. What then happens in the event of
a reorganisation? The members of the caste or community that is
designated as Scheduled Caste living within the larger area of the erstwhile
united state, would face disruption in the event of bifurcations, at the
time of reorganisation. Where reorganization enactments provide that
G the caste or community concerned would continue to be a notified caste
or community in relation to both the states, there would be minimal
disruption. However, where a caste or community in an undivided state,
upon bifurcations ceases to be notified as a Scheduled Caste in relation
to one of the bifurcated states, within which the concerned member of
the community lives or works, problems would inevitably arise.
H
AKHILESH PRASAD v. JHARKHAND PUBLIC SERVICE 421
COMMISSION & ORS. [S. RAVINDRA BHAT, J.]

6. As has been pointed out, by the judgment of Justice Lalit, this A
problem was addressed in Pankaj Kumar v. State of Jharkhand &
Ors.1 where the court discussed it in the following terms:
“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 B
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 C
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 D
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 E
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.”
Earlier, this court had to consider this issue in Sudhakar Vithal F
Kumbhare v. State of Maharashtra & Ors.2 where the problem was
flagged, and the solution left to be worked out in the following manner:
“4. It is no doubt true that a Scheduled Tribe notified in one
State may not be given the benefits therefore in another State
having regard to the plain expression “in relation to that State” G
in Article 342 of the Constitution. [See Action Committee on
Issue of Caste Certificate to Scheduled Castes and Scheduled
Tribes in the State of Maharashtra and Anr. v. Union of India

1
2021 SCCOnline (SC) 616
2
2003 Supp (5) SCR 746 H
422 SUPREME COURT REPORTS [2022] 19 S.C.R.

A & Anr. (1994) Supp (1) SCR 714 and U.P. Public Service
Commission, Allahabad v. Sanjay Kumar Singh 2003 (7) SCC
657.
5. But the question which arises for consideration herein
appears to have not been raised in any other case. It is not in
B dispute that the Scheduled Castes and Scheduled Tribes have
suffered disadvantages and denied facilities for development
and growth in several States. They are required 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 advantageous and developed sections of the
C 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 the
Chhindwara region, a part of which, on States’ reorganization
D has come to 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
E consultation with the Governor for the purpose of the
Constitution may not get the same benefit in other State whose
Governor has not been consulted; but it is another thing to
say that when an area dominated by members of the same
tribe belonging to the same region which has been bifurcated,
F the members would not continue to ge 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 the Scheduled Tribe belonging
to one region would continue to get the same benefits despite
bifurcation thereof in terms of States’ Reorganization Act. With
G 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 the part
of area of Chandrapur at one point of time belonged to the
H same region and under the Constitutional Scheduled Tribe
AKHILESH PRASAD v. JHARKHAND PUBLIC SERVICE 423
COMMISSION & ORS. [S. RAVINDRA BHAT, J.]

Order 1950 as it originally stood the Tribe Halba/Halbi of A
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
reorganization might have agreed for inclusion of the said
B
Tribe Halba/Halbi as a Scheduled Tribe in the State of
Maharashtra having regard to the said fact in mind.”
7. In another decision, State of Jharkhand v. Bhadey Munda3
the argument was that upon reorganization, the chances of promotion in
the newly reorganized state were less, and consequently, the official
should be protected. This court negatived the argument, holding as follows: C

“All that was submitted (for the first time and that too orally)
is that the reservation percentage as it existed in the State of
Bihar for scheduled caste and scheduled tribe candidates had
been varied in the State of Jharkhand, thereby reducing the
possibility of their promotion”. D

This court followed the older decision in State of Mysore v. G.B.
Purohit4 which held that changes in chances of promotion do not amount
to adverse change in service conditions.
8. In my opinion, given that determination of whether a community E
or caste has to be notified as Scheduled Caste, or Tribe, is in relation to
a state or union territory (i.e., it is primarily people-centric having regard
to the existing geo-political unit), and when a determination is so made
that a particular community belongs to such state, in the event of re-
organization, then, Parliament has a duty to provide clarity, by way of
express provision. The settled law, in respect of persons going from one F
state to another is that the status of “belonging to” a caste or tribe in
relation to one state would not apply once a member of that community
goes to another, (per Marri Chandra Shekhar Rao v. Dean Seth GS
Medical College5 and Action Committee on Issue of Caste Certificate
to Scheduled Castes and Scheduled Tribes in the State of G
Maharashtra and Anr. v. Union of India & Anr.6). In that sense, the
choice which an individual - who belonged to the erstwhile unified state
3
(2014)10 SCC 398
4
(1967) 1 SLR 753
5
1990 (2) SCR 843
6
(1994) Supp (1) SCR 714 H
424 SUPREME COURT REPORTS [2022] 19 S.C.R.

A - but who has to agree, for whatever reason, to settle in the bifurcated
state, in a place or region where he originally did not reside, is involuntary.
It is precisely to cater to such situations, that a provision was made
expressly protecting benefits which such individuals had hitherto been
enjoying in the erstwhile unified states, such as Section 73 of the Bihar
Re-organization Act, 2000, which Pankaj Kumar (supra) dealt with.
B
Such provisions were made in the past, and more recently, as well. 7
9. Another instance where Parliament has accommodated
disruptions which are likely to impact members of Scheduled Caste and
Scheduled Tribe communities, is in the event of acquisition of their lands
– especially if those are located as described in the Fifth Schedule (to
C the Constitution of India). The Right to Fair Compensation and
Transparency in Land Acquisition, Rehabilitation and Resettlement Act,
2013, by Section 42 provides as follows:
“42. Reservation and other benefits.–(1) All benefits, including
the reservation benefits available to the Scheduled Tribes and
D the Scheduled Castes in the affected areas shall continue in
the resettlement area.
(2) Whenever the affected families belonging to the Scheduled
Tribes who are residing in the Scheduled Areas referred to in
the Fifth Schedule or the tribal areas referred to in the Sixth
E Schedule to the Constitution are relocated outside those areas,
than, all the statutory safeguards, entitlements and benefits
being enjoyed by them under this Act shall be extended to the
area to which they are resettled regardless of whether the
resettlment area is a Scheduled Area referred to in the said
F Fifth Schedule, or a tribal area referred to in the said Sixth
Schedule, or not.
(3) Where the community rights have been settled under the
provisions of the Scheduled Tribes and Other Traditional
Forest Dwellers (Recognition of Forest Rights) Act, 2006 (2
G of 2007), the same shall be quantified in monetary amount
and be paid to the individual concerned who has been
displaced due to the acquisition of land in proportion with
his share in such community rights.”
7
Section 115 (7), States Re-organization Act, 1956; Sections 69-70 Madhya Pradesh
Re-organization Act, 2000; Sections 74-75 Uttar Pradesh Re-organization Act, 2000;
H Section 78, Andhra Pradesh Re-organization Act, 2014
AKHILESH PRASAD v. JHARKHAND PUBLIC SERVICE 425
COMMISSION & ORS. [S. RAVINDRA BHAT, J.]

10. In my considered opinion, given that states reorganizations A
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 state- in
B
which case, the rule in Marri Chandra Shekhar Rao (supra) 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 C
Shekhar Rao (supra), where this court had in fact commended
Parliament (or the concerned state legislatures) to make provisions for
the future 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
D
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 E
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.
11. I am in agreement with Justice Lalit, that the observations in F
Pankaj Kumar (supra) which went beyond what was required to be
decided, cannot be considered as its ratio. There can be myriad situations
which may arise directly for decision- such as for instance, where caste
A is not designated as a Scheduled Caste in one of the newly reorganized
states, where the individual is forced to locate; or where the children of
the concerned individual were studying in state A, and the parent was in G
state B (and continued to be so) and in the former state, the concerned
caste is not notified as a scheduled caste-or, even that the children are
not treated as “belonging to” that state, etc. Each such situation needs to
be examined, having regard to the legal regime in question. So far, the
instances of decided cases, have inevitably been in the context of H
426 SUPREME COURT REPORTS [2022] 19 S.C.R.

A reservations in public employment (Article 16). However, there may
arise, possibly, in the future, other kinds of disputes, which this court
should be careful not to pre-judge without careful scrutiny.
12. I agree with the observations and conclusions of Justice Lalit,
additionally, also for the reasons mentioned above.
B
Ankit Gyan and Amarendra Kumar Appeal allowed.
(Assisted by : Iram Jan, LCRA)

C

D

E

F

G

H