Quota benefits to stay even after bifurcation: SC

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

The Court was dealing with a case resulting from bifurcation of Bihar and Jharkhand in November 2000 where a scheduled caste candidate, born in undivided Bihar, was declared a migrant by Jharkhand and denied reservation benefits.

A bench of Justices UU Lalit and Ajay Rastogi noted that the caste to which the petitioner Pankaj Kumar belonged was recognized as a Scheduled Caste in both Bihar and Jharkhand.

Pankaj was born in Hazaribagh in 1974 which came under Jharkhand after the passing of the Bihar Reorganization Act, 2000.

The bench said, “It will be highly unfair and pernicious if the benefits of reservation are not being protected in the State of Jharkhand... Section 73 of the 2000 Act 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 his disadvantage after he became a member of service in the State of Jharkhand.”

Kumar was appointed as assistant teacher in December 1999 in Ranchi. Upon bifurcation of Bihar, he opted to work as an employee of the Jharkhand government. In 2008, he applied as an SC candidate for the Combined Civil Service Examination advertised by Jharkhand government, got selected but was denied appointment on the ground that his service book showed him as a permanent resident of Patna and denied him job on the ground that he was a migrant in Jharkhand.

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

Laying down the law, the bench said, “... such employees shall remain protected by virtue of Section 73 of the Act 2000 for all practical purposes which can be claimed (includ

ing by their wards) for participation in public employment.”

The Court was assisted by Attorney General KK Venugopal, who said that a government order of February 1985 generally lays down the law 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 argued.

He said such class of persons (as the petitioner) would not be considered as migrants to Jharkhand. He also clarified that reservation benefits could be claimed only in one state and not both states, which the court too reiterated.

The top court set aside the high court judgment and directed the Jharkhand government to appoint Kumar on the post he was selected for in 2008. He will be entitled to seniority as per his placement in the order of merit with notional pay and allowances but not back wages.

The court also heard a batch of separate 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 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 used 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.

THE TOP COURT SET ASIDE THE HC JUDGMENT AND DIRECTED THE J’KHAND GOVT TO APPOINT KUMAR ON THE POST HE WAS SELECTED FOR IN 2008