Parliament Must Provide Clarity On Reservation Benefits In Successor States After State Reorganization : Supreme Court

Factual Background

On July 24, 1995, Bihar Public Service Commission recommended the name of Akhilesh Prasad ("appellant") under the Scheduled Tribe category for filling up the posts of Cooperative Development Officers. Claim that the appellant belonged to ST category (Gond) was supported by a Certificate and on November 10, 1995 an appointment letter was issued to the appellant. After reorganization of the States of Bihar and Jharkhand, the appellant's service was allocated to the successor State of Jharkhand and since then the appellant has been in the service of the State of Jharkhand. Pursuant to the letter issued by by the Principal Secretary, Government of Jharkhand to all the Secretaries of departments regarding reservation in promotion in various categories of services under the State of Jharkhand, the appellant's name was forwarded by the office of the Registrar, Cooperative Societies, Jharkhand to the Commission.

Since the appellant was declared unsuccessful irrespective of securing 123.68 marks as against the cut-off at 113.70 for ST category in the examination which was conducted for filling up the posts of Deputy Collectors, he approached the High Court challenging his non selection.

On September 22, 2017 the Single Judge directed JPSC to consider the appellant's case for appointment to the post of Deputy Collector as a Reserved category (scheduled tribe).

The Division bench of the High Court however found that 25% of posts to be filled through the limited competitive examination would be by way of fresh appointment. The High Court further said that since there was no certificate issued by any of the competent authorities that he belonged to ST (Gond) category in the State of Jharkhand, the appellant could not be said to be belonging to the reserved category of STs for the purposes of limited departmental examination.

Aggrieved, the Appellant approached the Top Court.

Submission Of Counsels

Appearing for the appellant, Advocate Manoj Kumar submitted that appellant having been in the service of the then undivided State of Bihar and his services having been allocated to State of Jharkhand, is entitled to the benefits and protection under Sections 72 and 73 of the Bihar Reorganization Act, 2000. It was also his contention that 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. To further substantiate his contention, counsel relied on the judgment in Pankaj Kumar v. State of Jharkhand 2021 (9) SCALE 576.

Mr. Arunabh Chowdhury, Additional Advocate General appearing for State of Jharkhand and Mr. Himanshu Shekhar, Advocate appearing for the Commission submitted that condition No.13(that community certificate should be obtained from officer within Jharkhand) was an integral part of the process of selection and non- compliance of said condition would disentitle a candidate from claiming status as one belonging to ST in the State.

Supreme Court's analysis

The main judgment was authored by Justice UU Lalit for himself and on behalf of Justice Narasimha. It was held that employees who opt for service under a successor State after reorganization, their existing service conditions would not be varied to their disadvantage and would stand protected by virtue of Section 73 of the Bihar Reorganization Act, 2000.

The bench further observed that such person would not be entitled to claim the benefit of reservation simultaneously in both the successor States and could claim benefit of reservation in the service of the successor State to which they had opted but also in any subsequent open competition with the benefit of reservation.

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

The bench relied on the ratio of the judgment in Pankaj Kumar v. State of Jharkhand(which incidentally was authored by Justice Lalit).

In the said judgment the Top Court had ruled that a person belonging to a reserved category was entitled to claim benefit of reservation in either of the successor States of Bihar or Jharkhand, but could not claim benefit of the quota simultaneously in both the successor States upon their reorganization in November, 2000.

"It must be stated that the decision in Pankaj Kumar2 was rendered by this Court on 19.8.2021, while the judgment presently under challenge was delivered by the High Court on 12.5.2021. The High Court thus did not have the benefit of the decision of this Court. The law having been settled in Pankaj Kumar2, the judgment under appeal has to be read in light of the decision in Pankaj Kumar. It would therefore be immaterial whether or not the nature of limited departmental examination is to be taken as direct recruitment, as found by the Division Bench of the High Court," the bench said in this regard.

With regard Pankaj Kumar, Justice Lalit clarified that the entitlement of the progeny or the wards in Jharkhand had not strictly arisen for consideration in Pankaj Kumar. The issue, if any, Justice Lalit added, can and must be gone into in detail in an appropriate case.

Agreeing with this, Justice SR Bhat in his separately authored judgment said,

"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 children are not treated as "belonging to" that state, etc. Each such situation needs to be examined, having regard to the legal regime in question. So far, the instances of decided cases have inevitably been in the context of reservations in public employment (Article 16). However, there may arise, possibly, in the future, other kinds of disputes, which this court should be careful not to prejudge without careful scrutiny."

Dealing with the aspect in the facts of the case wherein the benefit of reservation was claimed in the limited departmental examination for the purpose of promotion to the next higher level the bench in judgment authored by Justice Lalit after referring to the judgment in All India Judges' Association & Ors. v. Union of India and Ors. (2002) 4 SCC 247 said,

"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 market, which talent is to be garnered through direct recruitment. The promotion as a channel to reach the higher level is only available to the persons already belonging to the service. In normal circumstances, the promotion would go by the concept of merit linked with seniority subject to suitability. In order to encourage meritorious candidates who may be comparatively junior in service, a window of opportunity is opened through limited departmental examination. Those who pass the examination are entitled to have an accelerated promotion. This process does not change the character of movement to the higher post and it continues to be a promotional channel. The Single Judge of the High Court was therefore right in allowing the writ petition. The underlined portion from the order passed by the Single Judge shows that the matter was considered in the correct perspective. The Division Bench of the High Court was not justified in concluding that limited departmental examination was nothing but direct recruitment from the open market."

Case Title: Akhilesh Prasad V. Jharkhand Public Service Commission And Ors.| Special Leave Petition (Civil) No.18890 of 2021

Coram: Justices UU Lalit, SR Bhat and PS Narasimha

Citation : 2022 LiveLaw (SC) 434

State Reorginzation - Parliament must provide clarity on reservation benefits in successor state - 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- Given that states reorganizations occur as a conse- quence of political demands, or as an articulation of regional aspirations, there is no agency of the individual (i.e., members of Scheduled Caste or Scheduled Tribe com- munities) in such eventuality.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 choose one among the newly reorganized states, and ensure that they are not worse off as a result of reorganization (Justice Ravindra Bhat, Para 10)

Constitution of India -Articles 14, 15(1), 341 and 342 -Furthermore, the duty to provide clarity and protection, generally speaking has to be consistent - i.e., in the case of one states' reorganization, the protection should not be greater than in the case of reorganization of another state. That would defeat the command of Articles 14 and 15 (1) (i.e., in the latter case, there can possibly be discrimination on the ground of place of birth). In my opinion, this duty stems from a co-joint reading of Part I (Articles 1 to 4), Articles 14, 15(1), 341, and 342 of the Constitution, and the overarching concern that the individual should not be worse off, due to disruption not of her or his making. The duty of Parliament in such cases, is a Constitutional obligation, to ensure that no one individual or group is disadvantaged (Justice Bhat, Para 10)

Bihar Reorganization Act 2000 - Section 73 - Employees who opt for service under a successor State after reorganization, their existing service conditions would not be varied to their disadvantage and would stand protected by virtue of Section 73 of the Act. Further, subject to the condition that such person would not be entitled to claim the benefit of reservation simultaneously in both the successor States, such employees would be entitled to claim not only the benefit of reservation in the service of the successor State to which they had opted and were allocated, but they would also be entitled to participate in any subsequent open competition with the benefit of reservation (Justice Lalit, Para 17)

Service Law - Appointment to senior positions through limited departmental competitive examinations is one through promotion channel - In order to encourage meritorious candidates who may be comparatively junior in service, a window of opportunity is opened through limited departmental examination. Those who pass the examination are entitled to have an accelerated promotion. This process does not change the character of movement to the higher post and it continues to be a promotional channel (Justice Lalit, Para 20)

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