State’s bifurcation can’t take away quota benefits, says SC

The top court was dealing with a petition by a man who was appointed as an assistant teacher in December 1999 at Ranchi as a scheduled caste (SC) candidate.

The Supreme Court has held that bifurcation of states will not result in persons already employed under reserved categories to be dislodged of their benefits in the newly formed state.

The Supreme Court noted that such a matter involving reservation benefits being denied as a result of bifurcation was arising for the first time. (Archive)

The top court was dealing with a petition by a man who was appointed as an assistant teacher in December 1999 at Ranchi as a scheduled caste (SC) candidate. Pankaj Kumar also opted to serve in Jharkhand after the new state was carved out of Bihar in 2000.

But when Pankaj Kumar applied as an SC candidate for the state’s combined civil services examination in 2008, he was not appointed despite his selection on the grounds that he was a migrant in Jharkhand and not entitled to reservation benefits since his service book showed him to be a permanent resident of Patna.

“It will be highly unfair and pernicious 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 2000 Act 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 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,” a bench of justices UU Lalit and Ajay Rastogi ruled.

The court directed the Jharkhand government to appoint Kumar on the post that he was selected for in 2008 and give him the seniority as per his placement in the order of merit with notional pay and allowances but not back wages.

The bench noted that the petitioner was born in Hazaribagh in 1974 which came under Jharkhand after the enactment of the Bihar Reorganization Act 2000 and belonged to caste recognized as a scheduled caste in both Bihar and Jharkhand.

The court noted that Sections 73 and 74 of the 2000 Act protected the employment of only those reserved candidates from undivided Bihar who opted to remain in the employment of Bihar government while employees of undivided Bihar who opted for service in Jharkhand government were denied recognition by Jharkhand terming them as migrants. At the same time, Bihar introduced a new rule in 2003 under the Bihar Reservation of Vacancies in Posts and Services(for Scheduled Castes, Scheduled Tribes and Other Backward Classes) Act, 1991, limiting reservation benefits to only those who are residing in Bihar.

The apex court noted that such a matter involving reservation benefits being denied as a result of bifurcation was arising for the first time.

“In our considered view, such of the employees who are members of the SC/ST/OBC whose caste/tribe has been notified by an amendment to the Constitution(Scheduled Castes)/(Scheduled Tribes) Order 1950 under Vth and VIth Schedule to Sections 23 and 24 of the Act of 2000 or by the separate notification for members of other backward class (OBC) category, the benefit of reservations including privileges and benefits flowing thereof, shall remain protected by virtue of Section 73 of the Act 2000 for all practical purposes which can be claimed (including by their wards) for participation in public employment.”

The court was assisted by Attorney General KK Venugopal who said that a February 1985 government order does specify that reserved category candidates will be entitled to claim benefits within their home state and not in the state to which they have migrated.

But here it was not a case of voluntary or involuntary migration but bifurcation, he said.

Venugopal said by virtue of Section 73 and 74 of the Bihar Reorganisation Act, the reservation rights of residents of the 18 districts included in Jharkhand would stand protected for all practical purposes and such class of persons (as the petitioner) would not be considered as migrants to Jharkhand. He clarified that reservation benefits could be claimed only in one state and not both states, a point that was reiterated by the court as well.

The court noted that the inclusion of the caste/tribe under the Presidential Order 1950 identified them because of the “disadvantages and social hardships” being faced by the members concerned in the integrated state of Bihar and by this yardstick, they will remain entitled to seek the benefit of reservation throughout the state of Jharkhand for public employment.

The court also ruled on a batch of appeals filed by six candidates of SC/ST/OBC categories who were appointed as constables in Jharkhand but were removed from service in June 2008 on the ground that they were migrants in the successor state. On merits, the apex court found that they were indeed migrants as they had no proof of how long they were staying in Jharkhand and failed to produce their caste certificate at the time of appointment.

But the court invoked its extraordinary powers and directed their reinstatement as undeniably, they belonged to the SC/ST/OBC category in the undivided Bihar and had already served for a period of three to four years as constables with Jharkhand police. Having lost 13 years in litigation, it would be hard for them to secure employment at this later stage, the bench observed.