Akhilesh Prasad v. Jharkhand Public Service Commission & Ors.
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
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
AKHILESH PRASAD v. JHARKHAND PUBLIC SERVICE
COMMISSION & ORS. [UDAY UMESH LALIT, J.]
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
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
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
Kumar v. State of Jharkhand 2.
15. Mr. Arunabh Chowdhury, learned Additional Advocate General
appearing for State of Jharkhand and Mr. Himanshu Shekhar, learn ed
Advocate appearing for the Commission have reiterated the submissions
which were accepted in the decision under challenge. It is subm itted
that condition No.13 was an integral part of the process of selection and
non-compliance of said condition would disentitle a candidate fr om
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
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
was allocated to State of Jharkhand. While serving as a teac her, he
appeared as a member of SC category in the Combined Civil Services
Examination, and though his name appeared at Sl. No.5 again st 17
vacancies reserved for SC Category, he was not selected on the ground
2 2021 (9) SCALE 576
411
that he being permanent resident of Patna, he would be treated a s 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
of Bihar and where the Constitution (Scheduled Cast es)/
(Scheduled Tribes) Order, 1950 identifying castes/ tribes is issued
extending the benefit to members of SC/ST throughou t the
integrated State of Bihar which was later on bifurcated by virtue
of a statutory instrument, i.e., the Act, 2000, into two successo r
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 thei r
lineal descendants has availed from the very inception of the
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
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 opte d or
joined being junior in their respective seniority, stands absorbed in
the successor State of Jharkhand and by virtue of a statutor y
instrument, their service conditions stand protected and became
entitled to claim privileges and benefits to which the members of
scheduled castes/ scheduled tribes/ OBC are entitled for in terms
of the Presidential Order 1950 as amended from time to time.
50. This Court, while examining almost a similar natu re of
controversy in Sudhakar Vithal Kumbhare v. State of
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 suff ered
disadvantages and been denied facilities for development and
AKHILESH PRASAD v. JHARKHAND PUBLIC SERVICE
COMMISSION & ORS. [UDAY UMESH LALIT, J.]
growth in several States. They require protective prefe rences,
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 M adhya
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
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 t he
same tribe belonging to the same region which has been bifurcated,
the members would not continue to get the same benefit whe n
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 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
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 eleme nts
which constitute the input for specification may not be total ly
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 Schedul ed
Tribe known as Halba/Halbi. The tribe had its origin in Di strict
413
Chhindwara region which is a part of State of Madhya Pradesh, a
part of the district of Chhindwara place Chandrapur, on Sta tes’
reorganization, came to the existing State of Maharashtra from
the State of Madhya Pradesh, it was not considered a cas e 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 Bo ard
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,
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 serv ice
conditions including benefit of reservation in the promotional cadre
post shall not be varied to his disadvantage but he sh all be
considered to be a migrant to the State of Jharkhand while
participating in public employment to compete in open/genera l
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
the appointed day, i.e. 15th November, 2000 in the S tate 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
are not being protected in the State of Jharkhand afte r 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 enjoy ing
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.
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
AKHILESH PRASAD v. JHARKHAND PUBLIC SERVICE
COMMISSION & ORS. [UDAY UMESH LALIT, J.]
now falling within the districts/regions which form a suc cessor
State, i.e., State of Jharkhand under Section 3 of the Act, 2000
became ordinary resident of the State of Jharkhand, at the sam e
time, so far as the employees who were in public employment in
the State of Bihar on or before the appointed day, i. e. 15th
November, 2000 under the Act 2000, apart from those who are
domicile of either of the district which became part of the State of
Jharkhand, such of the employees who have submitted their option
or employees who are junior in the cadre of their seniority as per
the policy of the Government of India of which a referenc e 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 w ho are
members of the SC/ST/OBC whose caste/tribe has been notified
by an amendment to the Constitution(Scheduled Caste s)/
(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, benef it of
reservation including privileges and benefits flowing thereof, shall
remain protected by virtue of Section 73 of the Act 2000 for a ll
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 ben efit of
reservation in either of the successor State of Bihar or Stat e of
Jharkhand, but will not be entitled to claim benefit of reservation
simultaneously in both the successor States and those who are
members of the reserved category and are resident o f the
successor State of Bihar, while participating in open selection in
State of Jharkhand shall be treated to be migrants and it w ill be
open to participate in general category without claiming the benefit
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 reserva tion
including the privileges and benefits admissible to the members of
415
Scheduled Caste category in the State of Jharkhand for all practical
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 Stat e 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 i n both the
successor States, such employees would be entitled to claim not only the
benefit of reservation in the service of the successor State to which they
had opted and were allocated, but they would also be entitled to participate
in any subsequent open competition with the benefit of reservation.
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 Cour t. The law
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.
19. However, in order to have clarity in the matter, it must be
noted that the benefit of reservation was claimed i n 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
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. Limite d 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
of India and Ors.3, the issue was considered in paragraphs 27 and 28
as under:
3 (2002) 4 SCC 247
AKHILESH PRASAD v. JHARKHAND PUBLIC SERVICE
COMMISSION & ORS. [UDAY UMESH LALIT, J.]
“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 H igher
Judicial Service, namely, by promotion from amongst the members
of the Subordinate Judicial Service and by direct recruitment. The
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. Whil e we
have accepted the recommendation of the Shetty Commission
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
Academy, which is very necessary. At the same time, we are of
the opinion that there has to be certain minimum st andard,
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
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 w ritten
and viva voce, we are of the opinion that there should be a n
objective method of testing the suitability of the subordinate judicial
officers for promotion to the Higher Judicial Service. Furthermore,
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 pe r cent
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
417
Courts should devise and evolve a test in order to ascertain and
examine the legal knowledge of those candidates and to asses s
their continued efficiency with adequate knowledge of case-law.
The remaining 25 per cent of the posts in the service s hall be
filled by promotion strictly on the basis of merit through the limited
departmental competitive examination for which the qualifying
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:
(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)
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 H igh
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
of promotion is not available to persons from the open mark et, 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 comparat ively
junior in service, a window of opportunity is opened through li mited
departmental examination. Those who pass the examination are entitled
to have an accelerated promotion. This process does not cha nge the
character of movement to the higher post and it continu es to be a
promotional channel. The Single Judge of the High Court was therefore
AKHILESH PRASAD v. JHARKHAND PUBLIC SERVICE
COMMISSION & ORS. [UDAY UMESH LALIT, J.]
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.
21. Before we part, we must deal with some of the observations
in Pankaj Kumar 2.
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/ Sche duled Tribes
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 S ections 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
in Pankaj Kumar 2, 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
that the progeny of such persons may have stayed back or may l ater
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.
Paragraph 55 of the decision in Pankaj Kumar2 is capable of being
read as conferring entitlement on the wards or the proge ny 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.
23. It must be stated that the entitlement of the progeny or t he
wards of the appellant in State of Jharkhand had not strictly arise n 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 judgme nt
and order passed by the Division Bench of the High Court and restore
419
the judgment and order dated 22nd September 2017 passed by the Single
Judge of the High Court. No costs.
S. RAVINDRA BHAT, J.
1. I have gone through the judgment of Justice U.U. Lalit, and
agree with his reasoning and conclusions. In addition, there are s ome
other reasons, which I feel are necessary, and need to be noticed, in the
context of this case. I proceed with those reasons, hereaf ter.
2. The framers of the Constitution were acutely aware of the
existing divide within Indian society by reason of caste and other factors.
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, whi ch is so
essential in every democracy – but in also making provisions ensuring
that the erstwhile oppressed classes or sections of ci tizens are given
benefits which would ensure their full and effective participation in society
and governance. Apart from making special provisions under Art icles
15 and 16, the methodology for identification of Scheduled Castes and
Scheduled Tribes has been provided for the purpose through Artic les
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 influenc es and
prejudices within states do not prevail. The special p rotections to
Scheduled Castes and Scheduled Tribes is also manifest in the protection
of the areas in which they inhabit, such as Fifth and Sixth S cheduled
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
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 stat es by law. This
reorganisation inevitably has the effect of disrupting pre-existing
arrangements. In this litigation we are concerned with the d isruption
AKHILESH PRASAD v. JHARKHAND PUBLIC SERVICE
COMMISSION & ORS. [UDAY UMESH LALIT, J.]
caused with respect to the service benefits of existing employees and
officials in the erstwhile state of Bihar, which was bif urcated by the
Bihar Reorganisation Act in 2000, and its effect on the respondent.
4. The Constitution uses the expression “in relation to”, in bot h
Articles 341 and 342, while prescribing the mode for determination of
Scheduled Castes and Scheduled Tribes, for the purp oses of the
Constitution. Quite naturally, the Constitution makers decided that the
State or Union Territory ought to be the unit in relation to whic h 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 whe ther a
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 undertake n. In some
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
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 throug h bifurcation or
reorganisation (as the Parliament has chosen to express it ), which has
been occasioned a number of times. What then happens in the event of
a reorganisation? The members of the caste or commun ity that is
designated as Scheduled Caste living within the larger area of the erstwhile
united state, would face disruption in the event of bifur cations, at the
time of reorganisation. Where reorganization enactments provi de that
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.
421
6. As has been pointed out, by the judgment of Justice Lalit, this
problem was addressed in Pankaj Kumar v. State of Jharkhand &
Ors.1where the court discussed it in the following terms:
“52. There is a fundamental dichotomy in the submis sions
made by the counsel for the State of Jharkhand that the
existing service conditions including benefit of re servation
in the promotional cadre post shall not be varied t o his
disadvantage but he shall be considered to be a migran t to
the State of Jharkhand while participating in publi c
employment to compete in open/general category and a sked
to seek the benefit of reservation in the neighbouring State of
Bihar, to hold different status in his parent State of Jharkhand
after he became a member of service of the State of Jhark hand,
serving for sufficient long time on and after the a ppointed
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 f lowing
thereof are not being protected in the State of Jharkhand after
he is absorbed by virtue to Section 73 of the Act 2000 that
clearly postulates not only to protect the existing service
conditions but the benefit of reservation and privileges which
he was enjoying on or before the appointed day, i.e . 15th
November, 2000 in the State of Bihar not to be varied to hi s
disadvantage after he became a member of service in the St ate
of Jharkhand.”
Earlier, this court had to consider this issue in Sudhakar Vithal
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”
in Article 342 of the Constitution. [See Action Committe e on
Issue of Caste Certificate to Scheduled Castes and Schedule d
Tribes in the State of Maharashtra and Anr. v. Union of Indi a
1 2021 SCCOnline (SC) 616
2 2003 Supp (5) SCR 746
AKHILESH PRASAD v. JHARKHAND PUBLIC SERVICE
COMMISSION & ORS. [S. RAVINDRA BHAT, J.]
& Anr. (1994) Supp (1) SCR 714 and U.P. Public Serv ice
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
dispute that the Scheduled Castes and Scheduled Tribes have
suffered disadvantages and denied facilities for developme nt
and growth in several States. They are required pro tective
preferences, facilities and benefits inter alia in th e form of
reservation, so as to enable them to compete on equal term s
with the more advantageous and developed sections o f the
community. The question is as to whether the appellant bei ng
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
has come to State of Maharashtra, was entitled to the benefi t
of reservation? It is one thing to say that the expre ssion “in
relation to that State” occurring in Article 342 of the
Constitution of India should be given an effective o r 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 t he
Constitution may not get the same benefit in other State who se
Governor has not been consulted; but it is another thing to
say that when an area dominated by members of the s ame
tribe belonging to the same region which has been bifurcated,
the members would not continue to ge the same benefit when
the said tribe is recognized in both the States. In other w ords,
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
a view to find out as to whether any particular area of the
country was required to be given protection is a matter whi ch
requires detailed investigation having regard to the fact t hat
both Pandhurna in the District of Chhindwara and the par t
of area of Chandrapur at one point of time belonged to the
same region and under the Constitutional Scheduled Tribe
423
Order 1950 as it originally stood the Tribe Halba/Hal bi 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
reorganization might have agreed for inclusion of t he said
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 Munda 3
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:
“All that was submitted (for the first time and that too or ally)
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 reducin g the
possibility of their promotion”.
This court followed the older decision in State of Mysore v. G.B.
Purohit4which 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
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
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 Sta te of
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
AKHILESH PRASAD v. JHARKHAND PUBLIC SERVICE
COMMISSION & ORS. [S. RAVINDRA BHAT, J.]
- 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 provisi on 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.
Such provisions were made in the past, and more recently, as well.7
9. Another instance where Parliament has accommodat ed
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 Fif th Schedule (to
the Constitution of India). The Right to Fair Compe nsation 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
the Scheduled Castes in the affected areas shall cont inue in
the resettlement area.
(2) Whenever the affected families belonging to the Schedule d
Tribes who are residing in the Scheduled Areas referred to in
the Fifth Schedule or the tribal areas referred to in the S ixth
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 whet her the
resettlment area is a Scheduled Area referred to in the said
Fifth Schedule, or a tribal area referred to in the sa id Sixth
Schedule, or not.
(3) Where the community rights have been settled under the
provisions of the Scheduled Tribes and Other Tradit ional
Forest Dwellers (Recognition of Forest Rights) Act, 2006 (2
of 2007), the same shall be quantified in monetary a mount
and be paid to the individual concerned who has bee n
displaced due to the acquisition of land in proport ion 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 Pra desh Re-organization Act, 2000;
Section 78, Andhra Pradesh Re-organization Act, 2014
425
10. In my considered opinion, given that states reorganizations
occur as a consequence of political demands, or as an articul ation 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
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
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 Schedul ed Castes or
Scheduled Tribes who because of their conditions of public employment,
have to go from one state to another. Furthermore, the duty to provide
clarity and protection, generally speaking has to be consistent - i.e., in
the case of one states’ reorganization, the protection should not be greater
than in the case of reorganization of another state. That would defeat
the command of Articles 14 and 15 (1) (i.e., in the latter case, there can
possibly be discrimination on the ground of place of birth). In my opinion,
this duty stems from a co-joint reading of Part I (Articles 1 to 4), Articles
14, 15(1), 341, and 342 of the Constitution, and the overarching concern
that the individual should not be worse off, due to disruption not of her or
his making. The duty of Parliament in such cases, is a Const itutional
obligation, to ensure that no one individual or group is disadvantaged.
11. I am in agreement with Justice Lalit, that the observations in
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
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 chil dren 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
AKHILESH PRASAD v. JHARKHAND PUBLIC SERVICE
COMMISSION & ORS. [S. RAVINDRA BHAT, J.]
reservations in public employment (Article 16). However, there may
arise, possibly, in the future, other kinds of disputes, w hich 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.
Ankit Gyan and Amarendra Kumar Appeal allowed.
(Assisted by : Iram Jan, LCRA)