JUDGMENT S.J. Mukhopadhaya, ACJ 1. In both the eases, as common questions of law are involved and similar orders are under challenge, they have been heard together and are being disposed of by this common judgment. The petitioners are Scheduled Tribe (ST for short) employees of the combined State of Bihar. According to them, their residents now fall within the territory of successesor State of Jharkhand. Their grievance is against the allocation of State, as made by the Central Government in pursuance of Bihar Reorganisation Act, 2000 (hereafter referred to as the Reorganisation Act, 2000). 2. For determination of the questions, as raised in both the cases, it is not necessary to discuss all the facts and law, except the relevant one, as stated hereunder. In pursuance of Reorganisation Act, 2000, the then State of Bihar was re- organized in two successor State of Bihar and Jharkhand which came into effect since 15th November, 2000. The Central Government has been empowered to allocate one or oilier successor State to Government employees under Section 72 of the Re-organisation Act, 2000. Provisions have been made under Section 75 of the Reorganization Act, 2000 empowering the Central Government to constitute Advisoiy Committee for the purpose of assisting it in regard to the discharge of any of its function and ensuring fair and equitable distribution of employees among two successor State of Bihar and Jharkhand. 3. There are three petitioners in W.F. (S) No. 2733 of 2004 and five petitioners in W.P. (S) No. 2734 of 2004. The State Advisory Committee while prepared a tentative final list recommended for allocating them the cadre under Successor State of Bihar. According to the petitioners, all of them being S.T. and being permanent residents of State of Jharkhand they should have been allocated State of Jharkhand as per their option. Their grievance is that the recommendation, as made by the State Advisoiy Committee and decision, if any, taken by the Central Government, is arbitrary and illegal. 4. Counsel for the petitioners submitted that allocation of any S.T. employee, who is resident of the Jharkhand State to the successor State of Bihar would deprive them of the constitutional guarantees and protections, inter alia, given under Articles 14, 16(4) and 29 and as such those allocation would be uncosntitutional and illegal. 4. Counsel for the petitioners submitted that allocation of any S.T. employee, who is resident of the Jharkhand State to the successor State of Bihar would deprive them of the constitutional guarantees and protections, inter alia, given under Articles 14, 16(4) and 29 and as such those allocation would be uncosntitutional and illegal. According to him, the petitioners being S.T. employees and residents of Jharkhand State, as per Schedule VI to the Re- organisation Act, 2000, their allocation (o the successor State of Bihar will jeopardize their right of equal opportunity guaranteed under the Constitution. It was submitted that after promulgation of Bihar Reservation of Vacancies in Posts (for Scheduled Castes, Scheduled Tribes and other Backward Classes) (Amendment) Act, 2003 (hereinafter referred to as the Act, 2003), petitioners being S.T. of the State of Jharkhand, will not be treated as S.T. for the successor State of Bihar. Thereby, the opportunity guaranteed to them under Article 16(4-A) shall be taken away, if they are finally allocated the successor State of Bihar. 5. According to counsel for UK; petitioners, any S.T. employee, who basically belongs to the State of Jharkhand for all purposes, will be treated as migrated S.T. employee in the successor State of Bihar and thus he/she will be denied his/her status as S.T. He placed reliance on the decisions of the Supreme Court in Marri Chandra Shekhar Rao v. Dean, Seth G.S. Medical College and Ors., and Action Committee etc. v. Union of India and Anr., and submitted that S.T. members of one State cannot have any claim or take the benefit of reservation of another State. 6. Though such submission seems to be attractive but it cannot be accepted in view of specific provisions made under Section 73 of the Re-organisation Act 2000. Reservation in the matter of appointmcnt, including the promotion being conditions of service: a person derives such benefit and claim under Article 16(4) and 16(4-A) of the Constitution of India. With a view to ensure fair and equitable treatment and proper consideration of representation at the time of allocation of cadre/State, power has been vested with the Central Government under Section 72 read with Section 75 of the Re-organisation Act. 2000. With a view to ensure fair and equitable treatment and proper consideration of representation at the time of allocation of cadre/State, power has been vested with the Central Government under Section 72 read with Section 75 of the Re-organisation Act. 2000. The Central Government initially issued guidelines by letter dated 13th September, 2000 for allocation of posts in the successor State of Bihar and Jharkhand, followed by subsequent guidelines issued by the Secretary, Ministry of Personnel. Public Grievances and Pensions. Government of India, New Delhi vide D.O. No. 28/1/2000 S.R.. dated 21st December 2000. A State Advisory Committee was constituted to assist the Central Government to discharge its functions and to ensure fair and equitable treatment to the State Government employees. Guidelines were ordered and to be followed by the State Advisory Committee, but the State Advisory committee was also given liberty to consider any principle/factor, which may become crucial in deciding the allocation of employee to the successor State of Bihar and Jharkhand. The reservation policy as was applicable in the combined State of Bihar prior Lo 15th November, 2000 was made applicable for the purpose of final allocation of employees to either of the successor State. After re-organisation and re-allocation of cadre, to ensure that the conditions of service of an employee may not change as were existing protection has been given under Section 73 of the Re-organisation Act. 2000. which reads as follows : 73. Other Provisions relating to serviccs.--(1) Nothing in Section 72 shall be deemed to affect on or after the appointed day the operation of the provision of Chapter 1 of Part XIV of the Constitution in relating to determination of the conditions of service of persons servicing in connection with the affairs of the Union or any State : Provided that the conditions of service applicable immediately before the appointed day In the case of any person deemed to have been allocated to the State of Bihar or to the State of Jharkhand under Section 72 shall not be varied to his disadvantage except with the previous approval of the Central Government. (2) All services prior to the appointed day rendered by a person,-- (a) if he is deemed to have been allocated to any State Under Section 72. (2) All services prior to the appointed day rendered by a person,-- (a) if he is deemed to have been allocated to any State Under Section 72. shall be deemed to have been rendered in connection with the affairs of that State; (b) if he is deemed to have been allocated to the Union in connection with the administration of the Jharkhand shall be deemed to have been rendered in connection with the affairs of the Union. for the purposes of the rules regulating his conditions of service. (3) The provisions of Section 72 shall not apply in relation to members of any All India Service. In view of aforesaid provision, even if a ST employee is allocated successor State of Bihar, he/she will get the benefit of reservation being protected under Section 73 of the Reorganisation Act, 2000. Further the bifurcation of cadre and allocation of State having made effective since 15th November. 2000. the subsequent Act, 2003 promulgated by the successor State of Bihar cannot take away existing right of any ST employee, as guaranteed under Article 16(4-A) of the Constitution. 8. Mr. Jose P. Verghese. learned Counsel for the petitioner while placed reliance on the dates produced by him with regard to allocation of posts and S.T. employees in one or other successor State, submitted that instead of working out the one per cent, reservation, out of the total number of posts in a cadre, the Committee has wrongly allocated one person each in each cadre in a most arbitraiy and discriminatory manner and in violation of Article 14 and 16 of the Constitution of India, as well as of Section 73 of the Re-organisation Act, 2000. In this regard, he relied on guidelines issued by the Central Government, as circulated by Director (SR), Public Complaint and Pension Ministry, Government of India vide D.O. No. 28/14/2001-SR (S), dated 28th February, 2002, wherein the percentage of allocation of S.T. employees in one or other State have been provided which reads as follows : R.R. Prasad Director (SR) Telex 4623711 D.O. No. 28/14/200l-SR(S) 3rd Floor, Lok Nayak Bhawan, Khan Market, New Delhi February 28, 2002 Dear Shri Venkatraman, Kindly refer to your D.O. letter No. K.K. 120/2001-01, dated 2.1.2002 in response to this Departments letter of even number dated 18.9.2001 forwarding therewith an experimental Tentative Final Allocation List in respect of State Administrative Service, Dy. SPs Cadre, PAs Cadre, State Finance Service and the State Engineering Services (PHED). 2. On careful analysis of the above allocation proposed, the Central Government has observed as under,-- (a) The ST population in the successor State of Bihar on and from the appointed day is about 1% only. (b) There are no areas in the successor State of Bihar on and from the appointed day which can be listed as Scheduled Area in terms of the Fifth Schedule of the Constitution of India. (c) In some of the cadres, ST employees have been proposed for allocation to the successor State of Bihar on juniority basis i.e. reverse order of seniority, although their preference is for the successor State of Jharkhand. (d) Even before the appointed day, in some cadres, the actual percentage i.e. observed level of ST personnel in the State of Bihar is short of the prescribed percentage i.e. 10% in respect of ST employees. 3. Based on the above mentioned observations the Central Government has reviewed its specific guideline on Reservation circulated vide letter No. 28/l/2000-SR(S), dated 22nd December, 2000 which reads as under : The reservation policy as applicable in the State of Bihar existing immediately before the appointed day, shall apply in respect of final allocation of employees to either of the successor State. 4. After careful consideration of the matter and the submissions made by the successor State Governments, the Central Government in respect of State service personnel other than All India Services, having an all State Transfer Liability or who are working against State level posts which are not exclusively relatable to areas falling in one successor State only has decided as under : (a) with a view to maximize satisfaction of maximum number of employees reservation principles should not be applied in respect of optees/domicile. (b) Wherever reservation principles are applied i.e. while allocating employees on the basis of juniority, the SAC, may ensure that in cadres, where the prescribed percentage or the observed percentage in the State of Bihar. before the appointed day, in each grade was more than 1% then in such Cadres, grade wise the percentage of ST employees of those proposed to be allocated to the successor State of Bihar should at least be maintained at 1%. before the appointed day, in each grade was more than 1% then in such Cadres, grade wise the percentage of ST employees of those proposed to be allocated to the successor State of Bihar should at least be maintained at 1%. The figure of 1% in respect of ST employees should be arrived at by in cluding ST employees proposed to be allocated on option/domicile basis to the successor not been received and are proposed to be allocated to the successor State of Bihar and would also include such ST employees whose options have not been received and are proposed to be allocated to the successor State of Bihar. (c) ST employees in excess of 1% who have been proposed to be allocated to the successor State of Bihar against their option, may be considered for allocation to the successor State of Jharkhand against available vacant posts. (d) While allocating ST employees as per (c) above, the SAC may ensure that the total number of employees proposed to be allocated to the successor State of Bihar does not fall short of the total number proposed for the successor State of Bihar. 5. With the issue of this letter, Central Government now desires that meetings of the State Advisory Committee may be reconvened at the earliest and Tentative Final Allocation List (TFAL) may be drawn and notified for the benefit of State Service Personnel inviting their representations. 6. Kindly have the receipt of this communication acknowledged. with regards, Your sincerely, Sd/- (R.R. Prasad) 9. To show the manner in which ST employees, including the petitioners have been allocated one or other successor State of Bihar and Jharkhand, a number of charts have been submitted lay the counsel for the petitioners after serving the copies of the same on the counsel for the respondents. The following datas have been referred and highlighted : ----------------------------------------------------------- Petitioner number Cadre/ Number Number of ST Department of ST employees employees allocated suc- allocated cessor successor State of State of Jhark-hand Bihar -------------------------------------------------------- W.P. (S) No. 2733/04 ------------------------------------------------------- Pradeep Robert Labour Superintendent, 1 6 Lakra (petitioner Labour Employment and No. 1) Training Department Sanjeev Kujur District Public Relation 1 4 (petitioner No. 2) Officer, Information and Public Relation Department Jakariash Guria Clerk (Factory Inspector),1 11 petitioner No. 3) Labour Employment and Training Department ------------------------------------------------------- W.P. (S) No. 2734 ------------------------------------------------------- Mrs. Pushpa Joint Registrar (Audit), 1 Nil Purty (petitioner Cooperative Department No. 1) Ratan Khess Inspector of Factories, 1 Nil (petitioner No. 2) Labour Employment and Training Department Sushil l Minz District Mining Officer, (petitioner No. 3) Mines and Geology Department 1 Nil Deepak Kachhap No details given (petitioner No. 4) Turan Horo Dy. Chief Inspector of 1 Nil (petitioner No. 5) Factories, Labour Employment and Training Department ------------------------------------------------------- 10. From the aforesaid chart, as given by the counsel for the petitioners, it will be evident that so far as W.P. (S) No. 2733 of 2004 is concerned, the ST employees have been allocated as per Government Guidelines. One employee of each cadre has been allocated successor State of Bihar, whereas more than one employee has been allocated successor State of Jharkhand. So far as W.P. (S) No. 2734 of 2004 is concerned, it has not been disputed by the respondents that there are only one ST employee functioning as Joint Registrar (Audit) in the Cooperative Department; one ST Inspector of Factories was available in the Labour Employment and Training Department; one ST District Mining Officer, Mines and Geology Department and one ST Deputy Chief Inspector of Factories was available in the Labour Employment and Training Department of the then State of Bihar. After re-organisation, the single ST employee of such cadre has not been allocated successor State of Jharkhand as highlighted by the petitioners, but for the reason best known to the respondents, their names have been recommended for allocation to successor State of Bihar. 11. Dr. J.P. Gupta. counsel for the Union of India submitted that at least 1% of ST employees should be allocated successor State of Bihar and step was first taken to allocate at least one ST employee to the successor State of Bihar. This argument cannot be accepted being against the principles and guidelines issued by the Central Government. The ST population in the successor State of Bihar on or from the appointed day i.e. 15th November, 2000 being about 1% of ST employee to the successor Stale of Bihar. This argument cannot be accepted being against the principles and guidelines issued by the Central Government. The ST population in the successor State of Bihar on or from the appointed day i.e. 15th November, 2000 being about 1% of ST employee to the successor Stale of Bihar. If the post reserved for STs is more than one, one such reserved post for STs can be placed under the successor State of Bihar, but if there is only one ST employee, the State of Jharkhand being entitled for 99% of the strength and as per the guidelines, as majority of ST employees should be placed under the successor State of Jharkhand. it is not open for the respondents to allocate the sole ST employee under successor State of Bihar, which will otherwise amount to 100% allocation of ST employee under the successor State of Biliar. 12. In the aforesaid circumstances, while this Court is not inclined to grant any relief to petitioners of W.P. (S) No. 2733 of 2004. Pradeep Robert Lakra and Ors. v. Union of India and Ors., feels that the matter should be reconsidered by the respondents so far as petitioners of W.P. (S) No. 2734 of 2004, Mrs. Pushpa Purty and Ors. v. Union of India and Ors. In the result. W.P. (S) No. 2733 of 2004 is dismissed. However, this order shall not stand in the way of respondents to reconsider the cases of petitioners of this writ petition for final allocation/re-allocation under the successor State of Jharkhand. So far as petitioners of W.P. (S) No. 2734 of 2004 is concerned, the case is remitted with a direction to the Central Government to reconsider the cases of petitioners of the said case, namely. Mrs. Pushpa Purty (petitioner No. 1), Ratan Khess (petitioner No. 2), Sushll I Minz (petitioner No. 3) and Turan Horo (petitioner No. 5) for allocating their services under the State of Jharkhand. If there is single ST employee in one or other cadre, the case of such single ST employee should be considered for allocation of his/her services under the successor State of Jharkhand. The competent authority of the Central Government should take such decision within three months from the date of receipt of representation, as maybe preferred by any one or other petitioner of the said case, along with a copy of this judgment. So far as Deepak. The competent authority of the Central Government should take such decision within three months from the date of receipt of representation, as maybe preferred by any one or other petitioner of the said case, along with a copy of this judgment. So far as Deepak. Kachhap (petitioner No. 4) of W.P. (S) No. 2734 of 2004 is concerned if he is the only ST employee in his case and allocated successor State of Bihar and no ST employee of his cadre has been allocated successor State of Jharkhand, in such case, he may also prefer such representation along with a copy of this Judgment before the competent authority of the Central Government who will pass similar order. On the other hand, if there are other persons of his cadre allocated successor State of Jharkhand. the aforesaid direction will not be applicable to the petitioner No. 4. Deepak Kachhap. 13. In the result writ petition W.P. (S) No. 2733 of 2004 is dismissed and the writ petition W.P. (S) No. 2734 of 2004 stands disposed of with the aforesaid observations and directions. However, in the facts and circumstances, there shall be no order as to costs. Amareshwar Sahay, J. 14. I agree.