Holding

A person who was a resident of Bihar and employed before the bifurcation is entitled to claim reservation benefits in the successor State of Jharkhand, but cannot claim the same benefits simultaneously in both successor states; their service conditions are protected under Sections 73 and 74 of the Bihar Reorganisation Act, 2000.

Summary

The case concerned employees who were serving in the undivided State of Bihar before its bifurcation into Bihar and Jharkhand under the Bihar Reorganisation Act, 2000. The petitioners, members of SC/ST/OBC, claimed that their reservation benefits should continue in Jharkhand, where they were now resident, and that they should not be treated as migrants losing those benefits. The Supreme Court examined the scheme of the 2000 Act, particularly Sections 73 and 74, and the constitutional provisions under Articles 341 and 342, holding that service conditions and reservation benefits are protected for those who were appointed before the appointed day and opted for Jharkhand, but such benefits cannot be claimed simultaneously in both successor states. The Court set aside the High Court’s majority judgment, quashed the termination orders, and ordered reinstatement with notional pay and allowances. The decision clarified that reservation benefits are claimable in the successor state of residence, not in both states at once.

Issues considered

The extent to which Section 73 and 74 of the Bihar Reorganisation Act, 2000 protect reservation benefits of employees transferred to the successor State of Jharkhand.
Whether a person who was a resident of Bihar before bifurcation can claim reservation benefits in Jharkhand without being deemed a migrant.
Whether reservation benefits can be claimed simultaneously in both successor states, Bihar and Jharkhand.
The validity of the termination of service of constables appointed in Jharkhand after the reorganisation.

Legislation cited

Bihar Reorganisation Act, 2000s. 72, s. 73, s. 74

Subjects

reservationBihar Reorganisation Actsuccessor stateservice conditionsScheduled CastesScheduled TribesOBCmigrationArticle 341Article 342public employment

Judgment

[2021] 8 S.C.R. 537 537

PANKAJ KUMAR A
v.
STATE OF JHARKHAND & ORS.
(Civil Appeal No(s). 4864 of 2021)
AUGUST 19, 2021 B
[UDAY UMESH LALIT AND AJAY RASTOGI, JJ.]
Bihar Reorganisation Act, 2000: ss. 72, 73 and 74 – Provisions
relating to services in Bihar and Jharkhand – Benefit of reservation
– Entitlement to – Person resident of the State of Bihar – Order of
C
1950, identifying castes/tribes whereby benefit extended to members
of SC/ST throughout the integrated State of Bihar – Subsequently
State of Bihar bifurcated into two successor States, State of Bihar
and State of Jharkhand with rights and privileges to the extent being
protected by 2000 Act – Said persons, if could still be considered to
be a migrant to the successor State of Jharkhand depriving them of D
their privileges and benefits of reservation for public employment
to which the incumbent or their lineal descendants has availed in
the integrated State of Bihar – Held: 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 priveleges and
E
benefit of reservation simultaneously in both the successor States
since that would defeat the mandate of Arts 341(1) and 342(1) –
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 would be treated to be migrants and it would
be open to participate in general category without claiming the F
benefit of reservation and vice-versa – s. 73 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, in the State of Bihar not to be varied to his disadvantage after
he became a member of service in the State of Jharkhand – In view
G
thereof, it would 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 the
incumbent is absorbed – Employees who were in public employment
in the State of Bihar on or before the appointed day, apart from
those who are domicile of either of the district which became part of H
537
538 SUPREME COURT REPORTS [2021] 8 S.C.R.

A the State of Jharkhand, such of the employees who have submitted
their option to serve the State of Jharkhand, their existing service
conditions shall not be varied to their disadvantage and stands
protected by virtue of s. 73 – Such of the employees who are members
of the SC/ST/OBC whose caste/tribe has been notified, benefit of
reservation including privileges and benefits flowing thereof, would
B
be protected by virtue of s. 73 for all practical purposes which can
be claimed (including by their wards) for participation in public
employment – Constitution (Scheduled Castes)/(Scheduled Tribes)
Order 1950.
Disposing of the appeals, the Court
C
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
D 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
E 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
F 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
G 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
H instrument, their service conditions stand protected and became
PANKAJ KUMAR v. STATE OF JHARKHAND & ORS. 539

entitled to claim privileges and benefits to which the members A
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 B
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 C
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 D
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 E
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-F-
G] F

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 G
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 H
540 SUPREME COURT REPORTS [2021] 8 S.C.R.

A 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
B
protected by virtue of Section 73 of the Act, 2000. [Para 54][568-
A-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
C 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
D 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
E 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
F 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
G 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][568-
G-H; 569-B]
H
PANKAJ KUMAR v. STATE OF JHARKHAND & ORS. 541

1.9 As regards appellants in Civil Appeals @ SLP (Civil) A
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
B
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. C
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
D
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 E
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
F
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] 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]

H
542 SUPREME COURT REPORTS [2021] 8 S.C.R.

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. 3610-
3615 of 2021, the order of termination of each of the appellant is
B
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]

C 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
D 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
E Patil and Another v. Addl. Commissioner, Tribal
Development and Others (1994) 6 SCC 241 : [1994] 3
Suppl. SCR 50 – referred to.
Case Law Reference
[1990] 2 SCR 843 referred to Para 13
F
[1994] 1 Suppl. SCR 714 referred to Para 13
[2018] 10 SCR 513 referred to Para 13
[2003] 5 Suppl. SCR746 referred to Para 17
G
[2008] 17 SCR 675 referred to Para 17
[2001] 1 Suppl. SCR 493 referred to Para 40
[1994] 3 Suppl. SCR 50 referred to Para 51

H
PANKAJ KUMAR v. STATE OF JHARKHAND & ORS. 543

CIVIL APPELLATE JURISDICTION: Civil Appeal No.4864 of A
2021.
From the Judgment and Order dated 24.02.2020 of the High Court
of Jharkhand at Ranchi in LPA No.80 of 2018.
With
B
Civil Appeal Nos.4865-4870 of 2021
K.K. Venugopal, AG, Tushar Mehta, SG, Arunabh Choudhary,
AAG, Akshay Amritanshu, Saurabh Mishra, Kanu Agarwal, Ms. Suhasini
Sen, Arvind Kumar Sharma, Ms. Pragya Baghel, Ms. Tulika Mukherjee,
Zain Khan, Shwetank Singh, Ms. Aastha Shreshtha, Himanshu Shekhar, C
Jamnesh Kumar, Amit Pawan, Anand Nandan, Sumeet Gadodia, Kaushik
Poddar, Advs. for the appearing parties.
The Judgment of the Court was delivered by
RASTOGI, J.
D
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
24thFebruary, 2020 by three Judges with majority of 2:1.
3. The brief narration of facts for proper appreciation of the E
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 F
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 & G
brought up and took his education within the territory which is now in the
State of Jharkhand. He belongs to Scheduled Caste category and a
certificate was issued by the competent authority in the State of
Jharkhand. He was appointed on the post of Assistant Teacher on 21 st
December, 1999 and posted in a school in Ranchi, the capital of Jharkhand
H
544 SUPREME COURT REPORTS [2021] 8 S.C.R.

A 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.
B
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
C 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
D 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
E 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
F 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,
G 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
H
PANKAJ KUMAR v. STATE OF JHARKHAND & ORS. 545
[RASTOGI, J.]

certificate issued by the authority of the State of Bihar, hence could not A
be entitled to claim benefit of reservation of SC/ST/OBC in the successor
State of Jharkhand, by an Order dated 16th June, 2008.
10. The order of termination came to be challenged by filing writ
petition under Article 226 of the Constitution which was dismissed by
the learned Single Judge of the High Court by a judgment dated B
30th January, 2015. Aggrieved by the order of learned Single Judge,
appellants preferred LPA that came to be clubbed along with the LPA
preferred by the appellant Pankaj Kumar and all the analogous matters
were heard and dismissed by the impugned judgment which is a subject
matter of challenge in the instant batch of appeals.
C
11. Learned counsel for the appellants submits that it is an an
undisputed fact that in the unified State of Bihar, all the appellants suffered
the degree and element of disadvantages and social hardships which
constitute the input for inclusion of their caste/tribe in the category of
Scheduled Caste/Scheduled Tribe reflected from the Constitution
(Scheduled Castes)/(Scheduled Tribes) Order, 1950 in the State of Bihar. D

12. It was submitted that the place of origin of the appellant Pankaj
Kumar’s lineal descendants was of District Patna but he was born in
district Hazaribagh on 27th November, 1974 and from the year 1989, he
is the resident of District Ranchi where he obtained his education and
later appointed on 21st December, 1999 as Assistant Teacher in a school E
in Ranchi and in terms of Section 73 read with Section 74 of the Act,
2000 for all practical purposes, he became the ordinary resident of State
of Jharkhand and it has not been disputed by the authorities of the State
of Jharkhand that the caste certificate of the appellant, after going
through the rigors of disadvantages and social hardships, has been issued F
to him in the State of Jharkhand in reference to the Vth (Part VIA) and
VIth (Part XXII) Schedule inserted to the Constitution(Scheduled Castes)/
(Scheduled Tribes) Order, 1950 in reference to Sections 23 and 24 of
the Act, 2000.
13. It was further submitted that the view expressed by the High G
Court under the impugned judgment in treating the appellant to be a
migrant to the State of Jharkhand is not only in violation of Article 341(1)
of the Constitution but also of the Scheme of the Act, 2000 and reliance
placed on the principles of migration held by the Constitution Bench
judgment of this Court in Marri Chandra Shekhar Rao Vs. Dean,
H
546 SUPREME COURT REPORTS [2021] 8 S.C.R.

A Seth G.S. Medical College and Others1; Action Committee on Issue
of Caste Certificate to Scheduled Castes and Scheduled Tribes in
the State of Maharashtra and Anr. Vs. Union of India and Another2;
and Bir Singh Vs. Delhi Jal Board and Others3 has no application in
the facts of the instant case.
B 14. It was submitted that these all were the cases where the
incumbent migrated voluntarily from one State to another State but for
the reason that nomenclature of the caste to which the incumbent belonged
were notified in both the States in the category of scheduled castes
under the Presidential Order of 1950, the incumbent migratee claimed
his right in the State where he had been migrated seeking the benefit of
C reservation as a member of Scheduled Caste which admittedly the
migratee was not entitled to claim in the later State.
15. But the case of the appellant is not of voluntary or involuntary
migration from the State of Bihar to the State of Jharkhand rather it is a
case where the unified State of Bihar is divided into the two successor
D State of Bihar and State of Jharkhand under the Act, 2000 and with the
inclusion of the caste/tribe under the Presidential Order 1950 as amended
from time to time, the caste was identified because of the disadvantages
and social hardships being faced by the members concerned in the
integrated State of Bihar who were entitled to seek the benefit of
E reservation throughout the State of Jharkhand for public employment.
16. Learned counsel further submits that once the President
pursuant to Section 23 and 24 of the Act, 2000 has notified the Vth and
VIth Schedule to the Constitution(Scheduled Castes)/(Scheduled Tribes)
Order, 1950 for the successor State of Jharkhand which includes the
F caste to which the appellant belong, their appears no rational basis to
disentitle him from claiming privileges and benefits available to the
members of the SC/ST/OBC category, as the case may be, in the
successor State of Jharkhand.
17. Learned counsel for the appellants in the connected appeals,
G in addition, further submits that the appellants are members of SC/ST/
OBC in the unified State of Bihar and after creation of the State of
Jharkhand under the Act 2000, their castes/tribes/OBC are being duly

1
1990(3) SCC 130
2
1994(5) SCC 244
H 3
2018(10) SCC 312
PANKAJ KUMAR v. STATE OF JHARKHAND & ORS. 547
[RASTOGI, J.]

acknowledged in both the States, i.e. State of Bihar and State of A
Jharkhand and their rights seeking benefit of reservation in the State of
Bihar have been restricted by a proviso added to Section 4 by an
amendment Act, 2003 in the Bihar Reservation of Vacancies in Posts
and Services(for Scheduled Castes, Scheduled Tribes and Other
Backward Classes) Act, 1991 (hereinafter being referred to as the “Act
B
1991”) limiting it to only those who are residing in the State of Bihar and
if they are treated to be migrants in the State of Jharkhand as being
projected by the respondents to nullify their claims seeking benefit of
reservation, they will be deprived of claiming reservation in both the
States (Bihar and Jharkhand) and taking assistance of the judgment of
this Court in Sudhakar Vithal Kumbhare Vs. State of Maharashtra C
and Others4 and Sau Kusum Vs. State of Maharashtra and Others5,
counsel submits that the High Court has committed a serious error in
declining their claim and the minority view is based on the touch stone of
the mandate of the Constitution and of the Act 2000 protecting their
fundamental rights enshrined under the Constitution which deserves
D
acceptance by this Court.
18. Mr. K.K. Venugopal, learned Attorney General, while
supporting the minority view of the impugned judgment submits that the
Ministry of Home Affairs issued a Government Order dated 22nd February,
1985 stating inter alia that persons belonging to the reserved category
are entitled to claim benefits only within their home State and not in the E
State to which the incumbent has migrated and the Constitution Bench
of this Court has further approved that one is entitled to claim benefit of
reservation only in their home State and not in the State one has migrated.
19. Learned Attorney General further submits that Articles 341(1)
and 342(1) of the Constitution clearly mandates that the President with F
respect to any State or Union Territory, and where it is a State, after
consultation with the Governor thereof, notify specifically the castes,
races or tribes or parts of or groups within castes, races or tribes which
shall for the purposes of this Constitution be deemed to be Scheduled
Castes in relation to that State or Union Territory and this negates the G
benefits to be claimed by the incumbent in the State to which one has
migrated for all practical purposes.

4
2004(9) SCC 481
5
2009(2) SCC 109 H
548 SUPREME COURT REPORTS [2021] 8 S.C.R.

A 20. The Presidential Order issued in exercise of Articles 341(1)
and 342(1) of the Constitution notified the castes/tribes in the category
of SC/ST and by separate notification in the category of OBC was
applicable throughout the unified State of Bihar. The presumption has to
be drawn that unlike members of such castes which are notified, their
disadvantages and social hardships have been noticed by the caste
B
certificate issuing authority and the place of origin is material for the
authority to inquire as to whether the person is entitled to be a member
of the Scheduled Castes or Scheduled Tribes notified in the Constitution
(Scheduled Castes)/(Scheduled Tribes) Order, 1950 but after issuance
of the caste certificate, he become eligible to seek public employment
C and avail privileges and benefits flowing thereof throughout the State
with no restrictions impounded thereof.
21. After the unified State of Bihar has been divided into two
successor States, i.e. State of Bihar and State of Jharkhand under the
Act 2000 w.e.f. 15th November, 2000, and 18 districts of the unified
D State of Bihar had been carved out under Section 3 of the Act, 2000 to
the successor State of Jharkhand with a further rider/restriction under
the Act as being reflected under part VIII which relates for serving
employees and Section 73 read with Section 74 in particular protects the
rights of persons in employment working on or before the appointed
date, i.e. 15th November, 2000, and who are residents of 18 districts
E notified under Section 3 of the Act became part of State of Jharkhand,
their rights stand protected for all practical purposes in the given
circumstances, it may not be justiciable for the State of Jharkhand to say
that the rights of the incumbent including his caste certificate which he
holds shall be protected in terms of Section 74 of the Act 2000 even for
F his promotion against the vacancy of SC/ST at a later point of time but
the same incumbent will not be permitted to participate in the open
selection in the State of Jharkhand as a member of the reserved category
for the reason that his place of origin for the issuance of the caste
certificate is in the State of Bihar particularly when he was working on
or before the appointed date, i.e. 15th November, 2000 either in one of
G the 18 districts which formed part of Jharkhand or employees who
tendered option, their services were protected by virtue of Section 73 of
the Act 2000 and such class of incumbents would not be considered to
be migrants to the State of Jharkhand and according to him, their cases
are covered by the judgments of this Court in Sudhakar Vithal
H Kumbhare(supra) and Sau Kusum(supra) and submits that the
PANKAJ KUMAR v. STATE OF JHARKHAND & ORS. 549
[RASTOGI, J.]

minority view is the correct view which deserves to be considered by A
this Court with a minor correction that in the minority judgment, the
learned Judge has expressed that such of the members of the SC/ST/
OBC who belong to notified castes in the State of Bihar and State of
Jharkhand under the Presidential Order 1950 are entitled to claim benefit
of reservation in both the States is not the correct view for the reason
B
that one can claim benefit of reservation in either of the State and once
these incumbents became ordinary resident of the State of Jharkhand,
they are entitled to claim benefit of reservation only in the State of
Jharkhand and that is the reason for which the amendment has been
made by the State of Bihar under the Act 1991 by adding a proviso to
Section 4 of the Amendment 2003 indicating that those who are residing C
out of the State of Bihar shall not be entitled to claim benefits of reservation
under the Act 1991.
22. Per contra, learned counsel for the State of Jharkhand, on the
other hand, while supporting the majority view of the impugned judgment
submits that the appellants are neither the original inhabitants nor D
permanent residents of 18 districts that form part of the State of Jharkhand
in terms of Section 3 of the Act 2000. They are originally permanent
inhabitants and residents of the territories which now form an integral
part of the successor State of Bihar and taking note of Articles 341 and
342 of the Constitution of India, as interpreted by the Constitution Bench
of this Court in Marri Chandra Shekhar Rao(supra); Action E
Committee on Issue of Caste Certificate to Scheduled Castes
and Scheduled Tribes in the State of Maharashtra and Anr.(supra)
and Bir Singh (supra) and taking note of the Government Order dated
22nd March, 1977 followed with Government Order dated 22nd February,
1985, submits that all the incumbents although are undisputedly the F
members of SC/ST/OBC and their caste has been notified by an
amendment to the Constitution(Scheduled Castes)/(Scheduled Tribes)
Order, 1950 in the State of Jharkhand in terms of Sections 23 and 24 of
the Act, 2000 but would make them entitled to claim benefit of reservation
in the State of Bihar and the fact that they have been residing in the
State of Jharkhand on or before the appointed date, i.e. 15th November, G
2000 will only protect their rights/service conditions under Chapter VIII
of Act 2000, and if any of them wants to appear and participate in the
open selection seeking public employment or claiming other privileges,
etc. they would be treated to be migrant to the State of Jharkhand
regardless of the fact that their caste is being notified in the successor H
550 SUPREME COURT REPORTS [2021] 8 S.C.R.

A State of Jharkhand by an amendment in the Presidential Order of 1950
and once this has been expressly expounded by the Constitution Bench
of this Court of which a reference has been made, their claim has been
rightly considered and repelled by the majority view expressed in the
impugned judgment and that needs no interference of this Court.
B 23. We have considered the submissions made by the parties and
with their assistance perused the material available on record.
24. The mandate of affirmative action in favour of Scheduled
Castes/Scheduled Tribes indeed has an important place in our
constitutional scheme. Articles 341(1) and Article 342(1) of the
C Constitution of India empowers the President to specify the race or
tribes or part of groups within caste, race or tribes with respect to any
State or Union Territory for the purpose of the Constitution deemed to
be SC/ST in relation to that State or Union Territory, as the case may be.
The object of Articles 341(1) and 342(1) of the Constitution is to provide
additional protection to the members of the SC/ST having regard to the
D social and economical backwardness from which they suffer. It is obvious
that in specifying castes, race or tribes, the President has been authorised
to limit notification to part of groups with the castes, etc. and that must
mean that after examination of the disadvantages from which they have
suffered and the social and economic backwardness, the President may
E specify castes/tribes etc. as parts thereof in relation to the entire State
or in relation to parts of the State where he is satisfied that after
examination of the disadvantages, social and educational hardship and
backwardness of the race, caste or tribes justifies such specification.
25. Articles 341 and 342 make it clear that the caste, race or tribe
F or part of or group within any caste, race or tribe as specified in the
Presidential Order under Article 341(1) or a tribal community, as notified
in the Presidential Order under Article 342(1) shall be deemed to be
Scheduled Castes/Scheduled Tribes for the purpose of the Constitution
in relation to that State or Union Territory, as the case may be and this
exposition has been made clear from clause (2) of the Constitution
G (Scheduled Castes)/(Scheduled Tribes) Order, 1950.
26. There are various parameters which have to be taken into
consideration to recognize a caste/race as Scheduled Caste/Scheduled
Tribe in a State/Union Territory or a particular part thereof. This clearly
manifests from the mandate of Article 341(1) and 342(1) of the
H
PANKAJ KUMAR v. STATE OF JHARKHAND & ORS. 551
[RASTOGI, J.]

Constitution that after elaborate enquiries are made, the Presidential A
orders are issued. While doing so, the Presidential Orders not only provides
that even specified parts or groups of castes, races or tribes/tribal
community could be Scheduled castes/Scheduled Tribes in a particular
State/Union Territory but also makes it clear that certain castes or tribes
or parts/groups thereof could be Scheduled Castes/Scheduled Tribes in
B
specified/particular area/district of a State/Union Territory.
27. The consideration for specifying a Scheduled Caste or
Scheduled Tribes or Backward Classes in any given State depends on
the nature and extent of the disadvantages and social and educational
backwardness/hardships suffered by the members concerned of the class
in the State specific but that may be absent in another State to which the C
person has migrated.
28. Whenever States’ reorganization has taken place in the past,
Parliament has exercised its powers under Articles 341(1) and 342(1)
and notified specific castes/tribes that were entitled to be recognized as
Scheduled Castes/Scheduled Tribes in relation to the reorganized States/ D
Union Territories. The scheme of the Constitution(Scheduled Castes)/
(Scheduled Tribes) Order, 1950 makes it clear that the intention of the
Parliament was to extend the benefits of reservation in relation to the
State specific/Union Territory only to the castes, races or tribes as
mentioned in the Presidential Orders. E
29. The President, after consultation with the Governor and States
concerned in exercise of its power conferred under Articles 341(1) and
342(1) of the Constitution of India notified the Constitution(Scheduled
Castes) Order 1950 and the Constitution(Scheduled Tribes) Order, 1950
the part of which relevant for the purpose is as under:- F
(Scheduled Caste)
PART II – BIHAR
1. Throughout the State:-
1. Bauri 11. Hari, including Mehtar G
2. Bantar 12. Kanjar
3. Bhogta 13. Kurariar
4. Chamar 14. Lalbegi
H
552 SUPREME COURT REPORTS [2021] 8 S.C.R.

A 5. Chaupal 15. Mochi
6. Dhobi 16. Musahar
7. Dom 17. Nat
8. Dusadh, including Dhari or 18. Pan
B Dharhi 19. Pasi
9. Ghasi 20. Rajwar
10. Halalkhor 21. Turi
2. In Patna and Tirhut divisions, and the districts of Monghyr,
C Bhagalpur, Purnea and Palamau:-
Bhumij
3. In Patna, Shahabad, Gaya and Palamaudistricts:-
Bhuiya
D 4. In Shahabad district:-
Dabgar
(Scheduled Tribe)
PART II – BIHAR
E
1. Throughout the State:-
1. Asur 15. Kharwar
2. Baiga 16. Khond
3. Bathudi 17. Kisan
F
4. Bedia 18. Kora
5. Binjhia 19. Korwa
6. Birhor 20. Lohara
7. Birjia 21. Mahli
G
8. Chero 22. Mal Paharia
9. Chik Baraik 23. Munda
10. Gond 24. Oraon
11. Gorait 25. Parhaiya
H
PANKAJ KUMAR v. STATE OF JHARKHAND & ORS. 553
[RASTOGI, J.]

12. Ho 26. Santal A
13. Karmali 27. SauriaPaharia
14. Kharia 28. Savar
2. In the districts of Ranchi, Singbhum, Hazaribagh, Santal,
Parganas and Manbhum:- B
Bhumij
30. It may be relevant to note that in the Constitution(Scheduled
Castes) Order, 1950, 21 castes have been notified in the category of
Scheduled Castes which applies throughout the State. At the same time,
there are castes like ‘Bhumij, Bhuiya and Dabgar’, which are identified C
on region basis. In the Constitution(Scheduled Tribes) Order, 1950, 28
castes have been notified as Scheduled Tribes which applies throughout
the State and caste ‘Bhumij’ in certain regions is in the schedule of
Scheduled Castes and the very caste ‘Bhumij’ of the same nomenclature
in other districts/regions in the unified State of Bihar is notified as D
Scheduled Tribes. Certain modifications were made at a later stage in
the year 1956 and thereafter but that may not be so relevant for the
present purpose.
31. To identify that the person is a member of the Scheduled
Caste or Scheduled Tribe, it may be imperative for him to justify and
E
establish that he is a member of that caste/tribe who has been a sufferer
of disadvantages or social hardships or economic sufferings to which
the members of the castes/tribes were subjected to and is identified in
the Presidential Notification of 1950 and the caste certificate issuance
authority has to take into consideration the place of origin/domicile and
resident of the State to conduct a discreet enquiry or inquiry contemplated F
under the scheme of rules for the purpose of recording a finding as to
whether the incumbent who claimed to be a member of the Scheduled
Caste or Scheduled Tribe or OBC, as the case may be, is eligible and
entitled for issuance of the caste certificate as has been claimed by him
and once a certificate is issued to him, he becomes a member of the
G
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.

H
554 SUPREME COURT REPORTS [2021] 8 S.C.R.

A 32. At the same time, such of the castes/tribes which are region
based, the incumbent has to furnish in the first instance the place of
origin/domicile of that particular region where the caste/tribe has been
identified as scheduled caste/scheduled tribe to make him entitled to
claim reservation of SC/ST, as the case may be, and after the caste
certificate is issued to the incumbent, his wards also became entitled to
B
claim the privileges and benefits of the reservation admissible under the
law throughout the State.
33. The Act 2000 was enacted by the Parliament, which came
into force on the appointed day i.e. 15th November 2000 and under Section
3 of the Act 2000, a successor State of Jharkhand was formed comprising
C of 18 districts of the integrated State of Bihar and the said territories
ceased to form part of the State of Bihar. The scheme of Act 2000
clearly demonstrates that apart from the territorial division of State of
Bihar and State of Jharkhand, provision was made in the Constitution
consisting of the representation of the legislators, the house of people,
D the legislative assembly, delimitation of Constituencies, etc. Amendment
was made to the Presidential Order 1950 to the scheduled castes/
scheduled tribes from the appointed date, i.e. 15th November, 2000
pursuant to Sections 23 and 24 of the Act enacted V th(Part VIA) and
VIth(Part XXII) Schedule to apply throughout the State of Jharkhand.
E 34. The Presidential Order 1950 notifying the castes/tribes notified
for the State of Jharkhand after an amendment to the Constitution
(Scheduled Castes)/(Scheduled Tribes) Order, 1950 introducing Schedule
to Sections 23 and 24 of the Act 2000 are reproduced hereunder:-
THE FIFTH SCHEDULE
F (See Section 23)
AMENDMENT OF THE CONSTITUTION (SCHEDULED
CASTES)
ORDER, 1950
G In the Constitution (Scheduled Castes) Order, 1950, in the
Schedule,—
(i) in Part III relating to State of Bihar, in item No. 5, the brackets
and words “(excluding North Chhotanagpur and South
Chhotanagpur divisions and Santhal Parganas district)” shall be
H omitted;
PANKAJ KUMAR v. STATE OF JHARKHAND & ORS. 555
[RASTOGI, J.]

(ii) after Part VI, Himachal Pradesh, the following shall be inserted, A
namely:—
“PART VIA –Jharkhand
1. Bantar 2. Bauri 3. Bhogta
4. Bhuiya 5. Chamar, Mochi 6. Chaupal B
7. Dabgar 8. Dhobi 9. Dom,
Dhangad
10. Dusadh, Dhari, Dharhi 11. Ghasi 12. Halalkhor
13. Hair, Mehtar, Bhangi 14. Kanjar 15. Kuraiar C
16. Lalbegi 17. Musahar 18. Nat
19. Pan, Sawasi 20. Pasi 21. Rajwar
22. Turi
THE SIXTH SCHEDULE D
(See section 24)
AMENDMENT TO THE CONSTITUTION (SCHEDULED
TRIBES)
ORDER, 1950 E
In the Constitution (Scheduled Tribes) Order, 1950,—
(1) in paragraph 2, for the figures “XXI” the figures “XXII”
shall be substituted;
(2) in the Schedule,— F
(i) in Part III relating to State of Bihar, the item No. 6 and
the entries relating thereto, shall be omitted, and the item
Nos. 7 to 30 shall be renumbered as item Nos. 6 to 29;
(ii) after Part XXI, the following Part shall be inserted,
namely:— G
“PART XXII –Jharkhand
1. Asur 2. Baiga 3. Banjara
4. Bhathudi 5. Bedia 6. Binjhia
H
556 SUPREME COURT REPORTS [2021] 8 S.C.R.

A 7. Birhor 8. Birjia 9. Chero
10. Chic Baraik 11. Gond 12. Gorait
13. Ho 14. Karmali 15. Kharia
16. Kharwar 17. Khond 18. Kisan
B 19. Kora 20. Korwa 21. Lohra
22. Mahli 23. Mal Pahariya 24. Munda
25. Oraon 26. Parhaiya 27. Santhal
28. SauriaPaharia 29. Savar 30. Bhumij.”
C
35. It may be noticed that in the integrated State of Bihar, these
very castes/tribes have been identified under the Constitution (Scheduled
Castes)/(Scheduled Tribes) Order, 1950, it applies throughout the State
of Bihar including 18 districts which now form the territorial jurisdiction
of the successor State of Jharkhand created in terms of Section 3 of the
D Act, 2000.
36. In the integrated State of Bihar, in terms of the Constitution
(ScheduledCastes)/(Scheduled Tribes) order, 1950, after the caste
certificate of the Scheduled Castes/Scheduled Tribes/OBC has been
issued to the incumbent on the basis of his place of origin/domicile, made
E him entitled to claim privileges and benefits throughout the State of Bihar.
After the incumbent has enjoyed the privileges and benefits as a member
of Scheduled Caste/Scheduled Tribe/OBC for more than five decades,
at the time of issuance of the amendment notification introducing Vth
and VIth Schedule in terms of Sections 23 and 24 of Act 2000 in November
2000, those very castes/tribes/OBC with the same nomenclature and
F geographical conditions, now located in the successor State of Jharkhand
by virtue of Section 3 of the Act 2000 became applicable to the residents
of the successor State for all practical purposes.
37. The Constitution Bench of this Court in Marri Chandra
Shekhar Rao (supra) had an occasion to examine as to whether the
G person belonging to Scheduled Castes in relation to a particular State
would be entitled to the benefits or concessions allowed to Scheduled
Castes in the matter of education/employment in another State. Referring
to various provisions of the Constitution and the grounds on which the
Presidential Orders were issued and noticing earlier judgments, this Court
H held as under:-
PANKAJ KUMAR v. STATE OF JHARKHAND & ORS. 557
[RASTOGI, J.]

“9. It appears that Scheduled Castes and Scheduled Tribes in A
some States had to suffer the social disadvantages and did not
have the facilities for development and growth. It is, therefore,
necessary in order to make them equal in those areas where they
have so suffered and are in the state of underdevelopment to
have reservations or protection in their favour so that they can
B
compete on equal terms with the more advantageous or developed
sections of the community. Extreme social and economic
backwardness arising out of traditional practices of untouchability
is normally considered as criterion for including a community in
the list of Scheduled Castes and Scheduled Tribes. The social
conditions of a caste, however, varies from State to State and C
it will not be proper to generalise any caste or any tribe as a
Scheduled Tribe or Scheduled Caste for the whole country.
This, however, is a different problem whether a member or the
Scheduled Caste in one part of the country who migrates to another
State or any other Union territory should continue to be treated as
D
a Scheduled Caste or Scheduled Tribe in which he has migrated.
That question has to be judged taking into consideration the interest
and well-being of the Scheduled Castes and Scheduled Tribes in
the country as a whole.”
(emphasis supplied)
E
38. This Court, while rejecting the contention that the member of
the Scheduled Castes/Scheduled Tribes should get the benefit for the
purpose of Constitution through out the territory of India, observed that
if such contention is to be accepted, the very expression “in relation to
State” would lose its significance. Marri Chandra Shekhar Rao (supra)
was further followed by another Constitution Bench of this Court in F
Action Committee on Issue of Caste Certificate to Scheduled Castes
and Scheduled Tribes in the State of Maharashtra and Anr.(supra)
which further came to be followed by another Constitution Bench of this
Court in Bir Singh (supra) wherein in para 34, it was held as under:-
“34. Unhesitatingly, therefore, it can be said that a person G
belonging to a Scheduled Caste in one State cannot be deemed to
be a Scheduled Caste person in relation to any other State to
which he migrates for the purpose of employment or education.
The expressions “in relation to that State or Union Territory” and
“for the purpose of this Constitution” used in Articles 341 and 342 H
558 SUPREME COURT REPORTS [2021] 8 S.C.R.

A of the Constitution of India would mean that the benefits of
reservation provided for by the Constitution would stand confined
to the geographical territories of a State/Union Territory in respect
of which the lists of Scheduled Castes/Scheduled Tribes have
been notified by the Presidential Orders issued from time to time.
A person notified as a Scheduled Caste in State ‘A’ cannot claim
B
the same status in another State on the basis that he is declared
as a Scheduled Caste in State ‘A’.”
(emphasis supplied)

C 39. So far as involuntary migration from one State to another
State is concerned, the Constitution Bench of this Court in Marri
Chandra Shekhar Rao(supra) taking note of the fate of those castes/
tribes seeking protection of being classed as Scheduled Castes or
Scheduled Tribes in the State of their origin when, because of transfer
D or movement of their father or guardian’s business or service, they move
to another State having considered the fate of their migration from one
State to another State being involuntary, by force or circumstances either
of employment or of profession, left it for the legislature or the Parliament
to consider it for appropriate legislation bearing that aspect in mind that
their rights and privileges as members of Scheduled Castes/Scheduled
E Tribes be well protected by virtue of provisions of Articles 341(1) and
342(1) of the Constitution and observed in para 23 as under:-
“23. Having construed the provisions of Articles 341 and 342 of
the Constitution in the manner we have done, the next question
that falls for consideration, is, the question of the fate of those
F Scheduled Caste and Scheduled Tribe students who get the
protection of being classed as Scheduled Caste or Scheduled Tribe
in the States of origin when, because of transfer or movement of
their father or guardian’s business or service, they move to other
States as a matter of voluntary (sic involuntary) transfer, will they
G be entitled to some sort of protective treatment so that they may
continue or pursue their education. Having considered the facts
and circumstances of such situation, it appears to us that where
the migration from one State to another is involuntary, by force of
circumstances either of employment or of profession, in such cases
if students or persons apply in the migrated State where without
H
PANKAJ KUMAR v. STATE OF JHARKHAND & ORS. 559
[RASTOGI, J.]

affecting prejudicially the rights of the Scheduled Castes or A
Scheduled Tribes in those States or areas, any facility or protection
for continuance of study or admission can be given to one who
has or migrated then some consideration is desirable to be made
on that ground. It would, therefore, be necessary and perhaps
desirable for the legislatures or the Parliament to consider
B
appropriate legislations bearing this aspect in mind so that proper
effect is given to the rights given to Scheduled Castes and
Scheduled Tribes by virtue of the provisions under Articles 341
and 342 of the Constitution. This is a matter which the State
legislatures or the Parliament may appropriately take into
consideration.” C
(emphasis supplied)
40. In relation to Backward Classes, this Court in M.C.D.
Vs. Veena and Others6 has specifically held that migrants are not entitled
for reservation as Other Backward Classes (OBCs) in the States/Union
Territories where they have migrated. The relevant portion of the D
judgment that may be noticed is as hereunder:
“6. Castes or groups are specified in relation to a given State or
Union Territory, which obviously means that such caste would
include caste belonging to an OBC group in relation to that State
or Union Territory for which it is specified. The matters that are E
to be taken into consideration for specifying a particular caste in a
particular group belonging to OBCs would depend on the nature
and extent of disadvantages and social hardships suffered by that
caste or group in that State. However, it may not be so in another
State to which a person belonging thereto goes by migration. It F
may also be that a caste belonging to the same nomenclature is
specified in two States but the considerations on the basis of which
they had been specified may be totally different. So the degree of
disadvantages of various elements which constitute the data for
specification may also be entirely different. Thus, merely because
a given caste is specified in one State as belonging to OBCs does G
not necessarily mean that if there be another group belonging to
the same nomenclature in another State, a person belonging to
that group is entitled to the rights, privileges and benefits admissible

6
2001 (6) SCC 571 H
560 SUPREME COURT REPORTS [2021] 8 S.C.R.

A to the members of that caste. These aspects have to be borne in
mind in interpreting the provisions of the Constitution with
reference to application of reservation to OBCs.”
(emphasis supplied)
41. By the judgments of the Constitution Bench of which the
B reference has been made (supra), it has been settled that the person
belonging to Scheduled Castes/Scheduled Tribes/OBC of the State, on
migration to another State voluntarily or involuntarily, will not be entitled
to claim benefits of reservation including privileges and benefits
admissible to the member of the Scheduled Castes/Scheduled Tribes/
C OBC even though, the caste or tribe of the same nomenclature is notified
in the latter State(State where migrated) and if that is being permitted,
the very expression as mandated under Articles 341(1) and 342(1) of
the Constitution in “relation to the State” would become otiose and this
issue remain no more res integra after the pronouncements made by the
Constitution Bench of this Court.
D
42. Learned counsel for the respondents has placed heavy reliance
on the Government Order issued by the Ministry of Home Affairs dated
22nd March, 1977 followed with 18th November, 1982, 6th August, 1984
and 22nd February, 1985. The bare perusal of the Government Orders of
which a reference has been made are addressed to the Chief Secretaries
E of all State Governments/Union Territory administrations in the form of
clarifications issued from time to time to the respective competent
authorities for issuance of Scheduled Castes/Scheduled Tribes caste
certificates.
43. In the Government Order dated 22 nd February 1985, a
F clarification was made that the persons belonging to Scheduled Castes/
Scheduled Tribes who were migrated from one State to another for the
purpose of employment, education etc. will be deemed to be the
Scheduled Castes/Scheduled Tribes in a State of his origin and will be
entitled to derive benefits from the State of origin and not from the State
G to which he has migrated. The extract of the Order dated 22nd February,
1985 is referred hereunder:-
“It is also clarified that a Scheduled Caste/tribe persons who has
migrated from the State of origin to some other State for the purpose
of seeking education, employment, etc. will be deemed to be a
Scheduled Caste/tribe of the State of his origin and will be entitled
H
PANKAJ KUMAR v. STATE OF JHARKHAND & ORS. 561
[RASTOGI, J.]

to derive benefits from the State of origin and not from the State A
to which he has migrated.”
44. It may further be noticed that the successor State of Bihar
which was represented before the High Court through their counsel
placed on record the provisions of the Act, 1991 and the emphasis was
on a proviso to Section 4 added by an amendment Act, 2003 to justify B
that those who are residing out of the State of Bihar would not be entitled
to claim the benefit of reservation in the matter of appointments in the
State of Bihar. The proviso added to Section 4 by amendment Act 2003
to Act 1991 is quoted hereunder:-
“Provided further that the candidates residing out of the State of C
Bihar shall not claim for benefits of reservation under this Act.”
45. In the instant case, we are not examining the issue of voluntary
or involuntary migration of the members of the SC/ST/OBC from State
‘A’ to another State ‘B’ claiming privileges/benefits admissible to member
of SC/ST/OBC even though there is a caste or tribe of the same D
nomenclature in the latter State.
46. The question that emerges for our consideration in the instant
appeals is whether a person, who has been a resident of the State of
Bihar and where the Constitution(Scheduled Castes)/(Scheduled Tribes)
Order, 1950 identifying castes/tribes is issued extending the benefit to E
members of SC/ST throughout the integrated State of Bihar which was
later on bifurcated by virtue of a statutory instrument, i.e., the Act, 2000,
into two successor States (State of Bihar and State of Jharkhand) with
their rights and privileges to the extent being protected by legislative
enactment under the provisions of the Act 2000, could still be considered
to be a migrant to the successor State of Jharkhand depriving them of F
their privileges and benefits to which the incumbent or their lineal
descendants has availed from the very inception of the Presidential Order
1950 in the integrated State of Bihar.
47. As regards the employees serving immediately before the
appointed day in connection with the affairs of the State of Bihar are G
concerned, special provisions have been made to protect their service
conditions under Part VIII of the Act 2000 and for its implementation,
the Government of India in exercise of its power under Section 72 came
out with a scheme laying down the criteria for allocation of the employees
to the State of Jharkhand and more specifically, so far as Scheduled
H
562 SUPREME COURT REPORTS [2021] 8 S.C.R.

A Castes/Scheduled Tribes/OBC are concerned, allocation has taken place
based on (1) domicile (2) option of the employee (3) if still the posts
remain vacant, allocation to take place amongst those who are in the
‘juniority’ cadre in the reverse order of seniority. The extract of the
Government Order issued by the Department of Personnel & Training,
Government of India for protecting the service conditions of the serving
B
employees under Act, 2000 is reproduced hereunder:-
“Department of Personnel &Tranining
State Reorganization
Introduction
C
State Reorganization Acts were enacted in November 2000 for
the purpose of reorganization of the then existing States of Uttar
Pradesh, Madhya Pradesh and Bihar. As a result, UP was
bifurcated into UP & Uttarakhand, MP became MP & Chhattisgarh
and Bihar was reorganized into Bihar and Jharkhand. As per
D provisions of these three Acts, Central Government is vested with
the authority for allocating services of personnel between the
successor States in connection with the State Re-
organisation. Other than the employees of All India
Services, State Government employees of State Cadre, are
E allocated between the successor States by the State Re-
organisation (SR) Division in the Department of Personnel &
Training.At present allocation of State Government employees
between the successor States of Uttar Pradesh / Uttarakhand,
Madhya Pradesh/ Chhattisgarh and Bihar/Jharkhand, is in
progress.
F
Basis of Allocation

Sl. State Appointed day
No.
1. Madhya Pradesh 01.11.2000
2. Uttar Pradesh 09.11.2000
G
3. Bihar 15.11.2000

The strength of Employees / vacancies existed as on the Appointed
Day is the base for allocation of posts between the successor
States. The appointed day for Uttar Pradesh, Madhya Pradesh
H and Bihar are as under:-
PANKAJ KUMAR v. STATE OF JHARKHAND & ORS. 563
[RASTOGI, J.]

Criteria of Allocation A
The broad principle of allocation of State cadre employees which
inter alia include allocation first by option, followed by domicile
(Home District) and lastly by inclusion of junior most personnel in
the reverse order of seniority. If the number of posts allocated to
a successor States are more than the total number of optees and B
domicile (Home District), in order to fill up the balance posts, the
employees lower down in the seniority position in the cadre are
considered for allocation even against their options. Option once
exercised by the employees is not reversible. Keeping in view the
resentment expressed by the employees who were allocated on
domicile and juniority basis against their willingness, several C
exceptions were made to the guidelines to facilitate certain class
of employees to be allocated to the States of their option.
The following are the exceptions to the above mentioned policy:-
S l. C at e g or ie s D e ta ils
No . D
(i ) W o m e n e m plo ye e s - A l loc a t e d b as e d on op tio n

(i i) C la s s IV e m p loy e e s - A l loc a t e d b as e d on op tio n

(i iii) H a nd ic a pp e d pe r s o n s - A l loc a t e d b as e d on op tio n

(i v ) S p o u se P olic y - B o t h the s p ou s e to be
a ll oc a te d to a s in gle
su cc e s s or S ta t e b as e d o n
the i r op t ion

(v ) M e dic a l ha r ds hip s - A lloc a tio n is ba s e d o n
E
c ase s op tion i n the f o l low in g
m e d ic al h a rd s hi p c a se s

(a ) C a n c e r pa ti e n t - S e lf o r fa m ily #

(b ) B li nd ne s s - S e lf o nly

(c ) H e a rt B ye -p a s s - S e lf on ly if d o ne w ith in
su r ge r y tw o y e a rs f ro m th e d a te of
re p re s en ta ti on is
c on si de r e d by the F
C o m m i tt e e

(d ) K id ne y - S e lf o r f a m ily #
tr a nsp l a nta t io n/

K i d ne y f a il u re and
c on tin uin g on
d ial ysis

(e ) M e nta l illn es s - S e lf o r f am i ly# , re st ri c te d
to i n d o or tre a tm e n t fo r a t
le a st thr e e m on ths G
(f ) B h op a l G as T r a ge dy - A l loc a t e d b a s e d o n o ptio n
on ly if th e c o m p en s a tio n
a m o un t r e c e ive d by
se lf /fa m i ly is m or e th a n
R s. 50 ,00 0/- o r m or e

(g ) S C / S T E m p l oy e es - A l loc a t e d b ase d on
do m ic ile or on o ptio n
ba sis .
H
564 SUPREME COURT REPORTS [2021] 8 S.C.R.

A #family include spouse, dependent children and dependent parents.
(f) Final Allocation
Based on the recommendations of the State Advisory Committee
and after ensuring that the recommendations are as per the
Guidelines on Reorganization, the Central Government issues final
B allocation of personnel between the successor States.”
48. By introducing the Act 2000, so far as the conditions of service
of the serving employees is concerned, are indeed being protected by
virtue of Section 73 read with Section 74 under Part VIII of the Act
2000 which clearly provides that such of the employees who were
C 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
D 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
E not to be varied to his disadvantage except with the previsous approval
of the Central Government. Sections 73 and 74 of the Act releavant for
the purpose are extracted hereunder:-
“Section 73. Other provisions relating to services. - (1)
Nothing in Section 72 shall be deemed to affect on or after the
F appointed day the operation of the provisions of Chapter I of Part
XIV of the Constitution in relation to determination of the conditions
of service of persons serving in connection with the affairs of the
Union or any State:
Provided that the conditions of service applicable
G immediately before the appointed day in the case of any person
deemed to have been allocated to the State of Bihar or to the
State of Jharkhand under Section 72 shall not be varied to his
disadvantage except with the previous approval of the Central
Government.
H
PANKAJ KUMAR v. STATE OF JHARKHAND & ORS. 565
[RASTOGI, J.]

(2) All services prior to the appointed day rendered by a person— A
(a) if he is deemed to have been allocated to any State under
Section 72, shall be deemed to have been rendered in
connection with the affairs of that State;
(b) if he is deemed to have been allocated to the Union in
connection with the administration of the Jharkhand shall be B
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. C

Section 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 D
shall continue to hold the same post or office in that successor
State, and shall be deemed, on and from that day, to have been
duly appointed to the post or office by the Government of, or any
other appropriate authority in, that successor State:
Provided that nothing in this section shall be deemed to E
prevent a competent authority on and from the appointed day,
from passing in relation to such person any order affecting the
continuance in such post or office.”
49. The scheme of the Act 2000 postulates that employees who
are working immediately on or before the appointed date, in the State of F
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
G
which the members of scheduled castes/scheduled tribes/OBC are
entitled for in terms of the Presidential Order 1950 as amended from
time to time.
50. This Court, while examining almost a similar nature of
controversy in Sudhakar Vithal Kumbhare (supra) held as under:-
H
566 SUPREME COURT REPORTS [2021] 8 S.C.R.

A “5. But the question which arises for consideration herein appears
to have not been raised in any other case. It is not in dispute that
the Scheduled Castes and Scheduled Tribes have suffered
disadvantages and been denied facilities for development and
growth in several States. They require protective preferences,
facilities and benefits inter alia in the form of reservation, so as to
B
enable them to compete on equal terms with the more advantaged
and developed sections of the community. The question is as to
whether the appellant being a Scheduled Tribe known as Halba/
Halbi which stands recognized both in the State of Madhya
Pradesh as well as in the State of Maharashtra having their origin
C 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
should be given an effective or proper meaning so as to exclude
the possibility that a tribe which has been included as a Scheduled
D
Tribe in one State after consultation with the Governor for the
purpose of the Constitution may not get the same benefit in another
State whose Governor has not been consulted; but it is another
thing to say that when an area is dominated by members of the
same tribe belonging to the same region which has been bifurcated,
E the members would not continue to get the same benefit when
the said tribe is recognized in both the States. In other words, the
question that is required to be posed and answered would be as to
whether the members of a Scheduled Tribe belonging to one region
would continue to get the same benefits despite bifurcation thereof
in terms of the States Reorganisation Act. With a view to find out
F
as to whether any particular area of the country was required to
be given protection is a matter which requires detailed investigation
having regard to the fact that both Pandhurna in the district of
Chhindwara and a part of the area of Chandrapur at one point of
time belonged to the same region and under the Constitution
G (Scheduled Tribes) Order, 1950 as it originally stood the tribe Halba/
Halbi of that region may be given the same protection. In a case
of this nature the degree of disadvantages of various elements
which constitute the input for specification may not be totally
different and the State of Maharashtra even after reorganisation
might have agreed for inclusion of the said tribe Halba/Halbi as a
H
PANKAJ KUMAR v. STATE OF JHARKHAND & ORS. 567
[RASTOGI, J.]

Scheduled tribe in the State of Maharashtra having regard to the A
said fact in mind.”
51. It was a case where the person was a member of Scheduled
Tribe known as Halba/Halbi. The tribe had its origin in District
Chhindwara region which is a part of State of Madhya Pradesh, a part
of the district of Chhindwara place Chandrapur, on States’ reorgaisation, B
came to the existing State of Maharashtra from the State of Madhya
Pradesh, it was not considered a case of migration from State of Madhya
Pradesh to State of Maharashtra. But the State of Maharashtra being
the existing State and degree of disadvantages of various elements may
be different on the objection being raised by the State of Maharashtra
City Board where the incumbent was employed, it was left open for C
examination by the scrutiny committee constituted and established
pursuant to a judgment of this Court in Kumari Madhuri Patil and
Another Vs. Addl. Commissioner, Tribal Development and Others 7.
52. There is a fundamental dichotomy in the submissions made by
the counsel for the State of Jharkhand that the existing service conditions D
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 E
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.
53. It will be highly unfair and pernicious to their interest if the F
benefits of reservation with privileges and benefits flowing thereof are
not being protected in the State of Jharkhand after he is absorbed by
virtue to Section 73 of the Act 2000 that clearly postulates not only to
protect the existing service conditions but the benefit of reservation and
privileges which he was enjoying on or before the appointed day, i.e.
15 th November, 2000 in the State of Bihar not to be varied to his G
disadvantage after he became a member of service in the State of
Jharkhand.

7
1994(6) SCC 241 H
568 SUPREME COURT REPORTS [2021] 8 S.C.R.

A 54. The collective readings of the provisions of the Act, 2000
makes it apparent that such of the persons whose place of origin/domicile
on or before the appointed day was of the State of Bihar now falling
within the districts/regions which form a successor State, i.e., State of
Jharkhand under Section 3 of the Act, 2000 became ordinary resident of
the State of Jharkhand, at the same time, so far as the employees who
B
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
C of the Government of India of which a reference has been made, either
voluntarily or involuntarily call upon to serve the State of Jharkhand,
their existing service conditions shall not be varied to their disadvantage
and stands protected by virtue of Section 73 of the Act, 2000.
55. In our considered view, such of the employees who are
D 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
E 2000 for all 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 simultaneously in
F both the successor States and those who are members of the reserved
category and are resident of the successor State of Bihar, while
participating in open selection in State of Jharkhand shall be treated to
be migrants and it will be open to participate in general category without
claiming the benefit of reservation and vice-versa.
G 57. We are of the view that the present appellant Pankaj Kumar
in Civil Appeal @ SLP(Civil) No.13473 of 2020, being a serving employee
in the State of Jharkhand by virtue of Section 73 of the Act 2000, would
be entitled to claim the benefit of reservation including the privileges and
benefits admissible to the members of Scheduled Caste category in the
H
PANKAJ KUMAR v. STATE OF JHARKHAND & ORS. 569
[RASTOGI, J.]

State of Jharkhand for all practical purposes including participation in A
open competition seeking public employment.
58. So far as the case of other appellants in Civil Appeals @ SLP
(Civil) Nos. 3610-3615 of 2021 is concerned, there is no material placed
by either of them on record to justify that how long they were residing in
the districts which now form part of the successor State of Jharkhand B
and the advertisement of the year 2004 required that one has to submit
a caste certificate issued by the competent authority of the State of
Jharkhand and none of them produced the caste certificate. As noticed
by us, the present batch of appellants were appointed in the year 2005
as Constables against the post reserved for Scheduled Caste/Scheduled
Tribe/OBC category in the State of Jharkhand, in our considered view, C
were migrants to the State of Jharkhand which would disentitle them in
claiming the benefit of reservation in view of the judgment of the
Constitution Bench of this Court of which a reference has been
made(supra).
59. But taking note of the peculiar facts and circumstances of the D
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 E
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 F
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 G
deserves indulgence of reinstatement in service on notional fixation of
pay and allowances, etc.
60. Consequently, the appeals deserve to succeed and we hold
that the majority judgment of the High Court impugned dated 24th February,
2020 is unsustainable and is hereby set aside. We are also not in agreement H
570 SUPREME COURT REPORTS [2021] 8 S.C.R.

A with the minority judgment on principle and clarify that the person is
entitled to claim the benefit of reservation in either of the successor
State of Bihar or State of Jharkhand but would not be entitled to claim
the privileges and benefits of reservation simultaneously in both the States
and if that is permitted, it will defeat the mandate of Articles 341(1) and
342(1) of the Constitution.
B
61. Accordingly, the appellant Pankaj Kumar in Civil Appeal @
SLP(Civil) No. 13473 of 2020 shall be appointed pursuant to his selection
in reference to advertisement no. 11 of 2007 and he is entitled for his
seniority as per his placement in the order of merit with notional fixation
of pay & allowances and in Civil Appeals @ SLP(Civil) Nos. 3610-3615
C of 2021, the order of termination of each of the appellant is hereby quashed
and set aside and the appellants shall be reinstated in service with notional
pay & allowances and shall not be entitled for arrears of salary upto the
date of appointment/reinstatement.
62. Consequently, the appeals in the above terms stand disposed
D of and compliance shall be made within six weeks. No costs.
63. Pending application(s), if any, stand disposed of.

Nidhi Jain Appeals disposed of.
E

F

G

H