The top court also held that members of the reserved category, who are residents of the successor State of Bihar, while participating in open selection in Jharkhand shall be treated to be migrants and they can participate in the general category without claiming the benefit of reservation and vice-versa. 

A bench of Justices U U Lalit and Ajay Rastogi decided the “peculiar question” after a resident of Jharkhand, Pankaj Kumar, a member of Scheduled Caste filed an appeal against the 2:1 majority High Court order denying him appointment in state civil service examination of 2007 on the ground that his address proof showed that he was a permanent resident of Patna, Bihar. 

“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 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,” the bench said. 

The top court said it holds that the majority judgement of the High Court of February 24, 2020 is unsustainable in law and is hereby set aside. 

“We are also not in agreement 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,” the top court said. 

It directed that Pankaj Kumar shall be appointed pursuant to his selection in reference to advertisement number 11 of 2007 within six weeks and said that he is entitled for his seniority as per his placement in the order of merit with notional fixation of pay and allowances. 

The bench said that the collective readings of the provisions of the Bihar Reorganisation Act, 2000, makes it apparent that such persons whose place of origin/domicile on or before the appointed day (November 15, 2000) was of Bihar now falling within the districts/regions which form a successor State, that is Jharkhand under Section 3 of the Act, 2000 became ordinary resident of the State of Jharkhand. 

The top court said that at the same time, so far as the employees who were in public employment in Bihar on or before November 15, 2000, apart from those who have domicile of either of the district which became part of Jharkhand, such employees who have exercised their option to serve in Jharkhand their existing service conditions shall stands protected by virtue of Section 73 of the Act, 2000. 

“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 postulates not only to protect the existing service conditions but the benefit of reservation and privileges which they were enjoying on or before the appointed day, i.e. November 15, 2000 in the State of Bihar not to be varied to their disadvantage after they became a member of service in the State of Jharkhand,” the top court said. 

The top court said that in its 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(SC)/(ST) Order 1950 or by the separate notification for members of OBC category, benefit of reservation 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. 

“We are of the view that the present appellant Pankaj Kumar…, being a serving employee (as an assistant teacher) 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 SC category in Jharkhand for all practical purposes including participation in open competition seeking public employment,” it said. 

Kumar was born in 1974 in Hazaribagh district of Jharkhand, where his father, a permanent resident of Patna was posted and at the age of 15 in 1989, Kumar shifted to Ranchi, the state capital which came into effect after Bihar''s reorganization on November 15, 2000. 

He was appointed as assistant teacher in a school in Ranchi from December 21, 1999 and continued his job as teacher till 2008 in the same school. In 2008, Kumar applied for the 3rd Combined Civil Services Exam in Jharkhand and was called for an interview. 

He has submitted his Caste Certificate dated January 12, 2007 showing him as resident of Ranchi along with his application for the Civil Services, which showed his ‘original residence’ as Patna.