"In the meantime, those teachers, who are working in the scheduled District shall continue to work and shall not be displaced in pursuance of the impugned judgment of the High Court. Interim relief till the next date of hearing", directed the bench.
Senior Advocates Mukul Rohatgi and P.S. Patwalia appeared for the petitioners, while the respondents were represented by Senior counsel Gopal Sankaranarayanan and Harin Raval.
Background
The petitioners before the HC full bench of Justices H. C. Mishra, S. Chandrashekhar and Deepak Roshan were the aspirants for the post of Trained Graduate Teachers in various subjects in the Government Secondary schools, for which they underwent selection process, but could not be appointed in the schools situated in thirteen scheduled districts in the State, because they were not the residents of the scheduled districts. In the present set of writ applications, the constitutional validity of the notification and order issued by the State Government, dated 14.07.2016 was under challenge. By the said notification and order, it has been stated inter alia that in the 13 scheduled districts of the State, i.e., the districts of Sahebganj, Pakur, Dumka, Jamtara, Latehar, Ranchi, Khunti, Gumla, Lohardaga, Simdega, East Singhbhum, West Singhbhum and Seraikella-Kharsawan, only the local residents of the concerned scheduled districts shall be eligible for appointment on the District Cadre Class-III and Class-IV posts for a period of ten years from the date of issuance of the notification.
Heavy reliance was placed on the April 2020 verdict of a five-judge bench of the Supreme Court in Chebrolu L. Prasad's case, here it was held that 100 per cent reservation of teachers belonging to the Scheduled Tribe category at schools situated in "Scheduled Areas" is constitutionally invalid.
The Constitution bench led by Justice Arun Mishra quashed the Government order issued under the hand of Governor of State of Andhra Pradesh which had affirmed absolute reservation for ST teachers and imposed costs on both Andhra Pradesh & Telangana Government's, seeking reasons from the Government's for breaching the 50% ceiling in reservations. The Court has also reiterated the Indira Sawnhey Judgement, according to which Reservations are constitutionally valid if they do not go beyond 50%.
The issue had reached the Apex Court after an appeal was filed against the Andhra Pradesh High Court Order that had upheld the Government Order providing for the aforementioned cent per cent reservation.
The court had, however, interpreted the judgement prospectively and not "retrospectively" and held that the existing appointments made in excess of the 50 per cent reservation shall survive but shall cease to be effective in the future, thereby providing a relief to those who had already been appointed basis the said government order.
On a plain reading of the impugned notification and order, the High Court bench found that the Governor of Jharkhand has directed that the provisions regarding "eligibility of the appointment" mentioned in the various appointment rules as framed by the State Government under Article 309 of the Constitution of India, for the appointment to district cadre posts shall be deemed to be modified to the extent that cent-percent Class-III and Class-IV posts in various department in the 13 scheduled districts have been reserved for the residents of the concerned districts only. By the notification only the service rules framed under Article 309 of the Constitution of India have been sought to be modified, and even the list attached to the notification does not contain any Act of the Parliament or of the State Legislature.
The bench noted that it is held by the Apex Court in Chebrolu Leela Prasad Rao's case, that the rules framed under Article 309 of the Constitution of India are neither the law enacted by the Parliament nor by the State Legislature. Further, the top court clearly and specifically held that in garb of the non-obstante clause in paragraph 5(1) of the Fifth Schedule, such power cannot be exercised by the Governor of the State overriding the fundamental rights of the citizens guaranteed under Part-III of the Constitution.
"We are also bound by the conclusion of the Hon'ble Apex Court in Chebrolu Leela Prasad Rao's case, that the Governor in exercise of powers under Paragraph 5(1) Schedule V of the Constitution, can exercise the powers concerning any particular Act of the Parliament or the Legislature of the State, directing that such law shall not apply to the scheduled areas or any part thereof, or shall apply subject to any exceptions and modifications, but by that, a new law cannot be framed by the Governor of the State. It has been made clear by the Apex Court that the area reserved for the Governor under the provisions of paragraph 5(1) Schedule V of the Constitution is prescribed. He cannot act beyond its purview and has to exercise his power within the four corners of the provision.
"We also find that by the impugned notification issued by the Governor of the State, 100% reservation has been provided in favour of the residents of the scheduled districts, totally ignoring the fundamental rights of the citizens residing out of the scheduled districts, and as held by the Hon'ble Apex Court, such reservation is not permissible under the Constitution, as the outer limit is 50%, as specified in Indra Sawhney's case", concluded the bench.
As regards the submissions of the Advocate General and counsels for the respondents that in order to overcome the factors of low human development indices, backwardness, poverty etc., in the scheduled districts and to secure justice – social, economic and political, the notification had to be issued by the Governor of the State for protecting the interests of the residents in the scheduled districts, and even otherwise it would be of immense benefit to the school going children in the scheduled districts, if they are taught in their own tribal language by the local teachers, than the outsiders, who may not be well conversant with the local language, the bench said that they are only fit to be rejected. "This "sons of the soil" policies prescribing reservation or preference based on domicile or residence has already been decried by the Apex Court in Dr. Pradeep Jain's case, holding that Parliament alone has been given the right to enact an exception to the ban on discrimination based on residence. We find no logic in the submission that it would be of immense benefit to the school going children in the scheduled districts, if they are taught in their own tribal language by the local teachers, as the education of the school going children cannot be compromised with merit, giving 100% reservation in favour of the teachers of the same district and prohibiting the appointment of more meritorious teachers, even if available", said the bench.
The bench also did not find any merit in the submission of the Advocate General that the decision in Chebrolu Leela Prasad Rao's case, shall not be applicable to the facts of this case, inasmuch as, the question before the Apex Court was 100% reservation in favour of the Scheduled Tribes in the scheduled areas, which was not the basis of "residence", as in the State of Jharkhand. The bench noted that in Kailash Chand Sharma's case, A.V.S Narsimha Rao's case and Dr. Pradeep Jain's case, the Apex Court has held that "residence" by itself cannot be a ground to accord any preferential treatment for reservation, and it is not possible to compartmentalize the State into districts with a view to offer employment to the residents of that district on a preferential basis. In Dr. Pradeep Jain's case, the Apex Court has even condemned the wholesome reservation made by some of the State Governments on the basis of "domicile" or "residence". It is also held in these cases that only the Parliament is empowered under Articles 16(3) and 35(a) of the Constitution of India to enact any such law and this power is not available to the State Legislatures, and consequently, this power is not available to the Governor of the State as well.
" We accordingly find, hold and conclude that the Notification No. 5938 and Order No, 5939 dated 14.7.2016, issued by the respondent State, cannot be sustained in the eyes of law and must be held ultra vires Articles 14, 13(2), 15 and 16 of the Constitution of India. The impugned notification and order also violate Articles 16(3) and 35(a-i) of the Constitution of India, as such power is vested only in the Parliament and not in the State Legislatures. Consequently, the Governor of the State also cannot exercise such power. The same is ultra vires paragraph 5(1) of Schedule V of the Constitution of India as well, as the Governor has transgressed the limitations, in the garb of non-obstante clause therein", ruled the bench.
Both these Notification No. 5938 and Order No. 5939 dated 14.7.2016, were accordingly, quashed.
Next, the question about the appointments already made of the candidates belonging to the scheduled districts was addressed. It was submitted by the counsel for the respondents and the intervener respondents that similar was the situation in Chebrolu Leela Prasad Rao's case, wherein the appointments already made in the scheduled areas with respect to the Scheduled Tribe candidates of those areas have been saved by the Apex Court, irrespective of the fact that the relevant Government's notification dated 10.1.2000 was held ultra vires and not sustainable in the eyes of law.
"The facts of Chebrolu Leela Prasad Rao's case were quite different. In the said case, the candidates were working for about 30 years, inasmuch as, they were appointed pursuant to the Govt. notification issued on 5.11.1986 itself. Though the Andhra Pradesh Administrative Tribunal quashed the notification and the challenge to that order before the Hon'ble Apex Court was dismissed as withdrawn on 20.3.1998, the Government of Andhra Pradesh came out with yet another illegal notification dated 25.4.1987, which was also finally quashed by the Hon'ble Supreme Court in Civil Appeal No. 6437 of 1998 allowing the appeal by Judgment dated 18.12.1998. Thereafter, the State of Andhra Pradesh came out with yet another illegal notification dated 10.1.2000, which was held ultra vires by the Hon'ble Apex Court in Chebrolu Leela Prasad Rao's case (supra). Thus, the candidates already appointed in the year 1987 or afterwards had already worked for more than 30 years and it was in that peculiar circumstance, their appointments were saved with the condition that the States of Andhra Pradesh and Telangana shall not attempt similar exercise in future", reflected the bench.
It commented that Such is not the case in the present writ applications in hand. The local residents of the scheduled districts have been appointed only in the month of July, 2019 and they are working since then. Their appointments are fresh appointments and indeed, in teeth of Articles 14 and 16 of the Constitution of India. Such appointments cannot be protected in law. "Indeed, it has been pointed out that the State Government had been contemplating to impose such unreasonable and unconstitutional restrictions for all the districts in the State. We cannot be a mute spectator to such illegal actions of the State Government and any such attempt by the State Government has to be stalled at its very inception. Such appointments, ignoring the rights of more meritorious candidates, only on the basis of residence, were absolutely illegal and unconstitutional from its very inception and have to be quashed", concluded the bench.
[Read Order]