Case: AKHILESH PRASAD Vs. JHARKHAND PUBLIC SERVICE COMMISSION AND ORS

from amongst the advocates should be 25 per cent and the process of recruitment is to be by a competitive examination, both written and viva voce, we are of the opinion that there should be an 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 per 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 Courts should devise and evolve a test in order to ascertain and examine the legal knowledge of those candidates and to assess their continued efficiency with adequate knowledge of case-law. The remaining 25 per cent of the posts in the service shall 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 High 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 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. 21. Before we part, we must deal with some of the observations in Pankaj Kumar 2021 (9) SCALE 576. 22. In the instant case and in the case of Pankaj Kumar 2021 (9) SCALE 576, the appellants belonged to a particular community or tribe which was specified in the erstwhile State of Bihar as Scheduled Castes/ Scheduled 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 Sections 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 2021 (9) SCALE 576, 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 later 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 Kumar 2021 (9) SCALE 576 is capable of being read as conferring entitlement on the wards or the progeny 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 the wards of the appellant in State of Jharkhand had not strictly arisen for consideration in Pankaj Kumar 2021 (9) SCALE 576. In our view, the issue, if any, can and must be gone into in detail in an appropriate case.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]16. In Pankaj Kumar 2021 (9) SCALE 576, 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 teacher, he appeared as a member of SC category in the Combined Civil Services Examination, and though his name appeared at Sl. No.5 against 17 vacancies reserved for SC Category, he was not selected on the ground that he being permanent resident of Patna, he would be treated as 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 Castes)/ (Scheduled Tribes) Order, 1950 identifying castes/ tribes is issued extending the benefit to members of SC/ST throughout the integrated State of Bihar which was later on bifurcated by virtue of a statutory instrument, i.e., the Act, 2000, into two successor 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 their 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 opted or joined being junior in their respective seniority, stands absorbed in the successor State of Jharkhand and by virtue of a statutory 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 nature 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 suffered disadvantages and been denied facilities for development and growth in several States. They require protective preferences, 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 Madhya 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 the same tribe belonging to the same region which has been bifurcated, the members would not continue to get the same benefit when 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 elements which constitute the input for specification may not be totally 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 Scheduled Tribe known as Halba/Halbi. The tribe had its origin in District Chhindwara region which is a part of State of Madhya Pradesh, a part of the district of Chhindwara place Chandrapur, on States reorganization, came to the existing State of Maharashtra from the State of Madhya Pradesh, it was not considered a case 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 Board 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 service conditions including benefit of reservation in the promotional cadre post shall not be varied to his disadvantage but he shall be considered to be a migrant to the State of Jharkhand while participating in public employment to compete in open/general 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 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 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 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.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 now falling within the districts/regions which form a successor State, i.e., State of Jharkhand under Section 3 of the Act, 2000 became ordinary resident of the State of Jharkhand, at the same 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 reference 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 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 2000 or by the separate notification for members of other backward class category, benefit of reservation 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.56. 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.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 reservation including the privileges and benefits admissible to the members of 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 Kumar 2021 (9) SCALE 576, such of the 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.18. It must be stated that the decision in Pankaj Kumar 2021 (9) SCALE 576  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 Kumar 2021 (9) SCALE 576, the judgment under appeal has to be read in light of the decision in Pankaj Kumar 2021 (9) SCALE 576. 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.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 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.22. In the instant case and in the case of Pankaj Kumar 2021 (9) SCALE 576, the appellants belonged to a particular community or tribe which was specified in the erstwhile State of Bihar as Scheduled Castes/ Scheduled 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 Sections 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 2021 (9) SCALE 576, 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 later 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 Kumar 2021 (9) SCALE 576 is capable of being read as conferring entitlement on the wards or the progeny 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 the wards of the appellant in State of Jharkhand had not strictly arisen for consideration in Pankaj Kumar 2021 (9) SCALE 576. In our view, the issue, if any, can and must be gone into in detail in an appropriate case.