'100% Reservation For Local Residents In Scheduled Areas Unconstitutional' : Supreme Court Quashes Jharkhand Govt Notification

The Supreme Court on Tuesday quashed a notification issued by the State of Jharkhand in 2016 to provide for 100% reservation for local residents in District Cadre Class III and Class IV posts in the 13 Scheduled Districts of the State.

The Court held that "100% reservation provided for the local residents of the concerned Scheduled Districts / Areas only would be violative of Article 16(2) of the Constitution of India and affecting rights of the other candidates / citizens of non­scheduled areas / Districts guaranteed under Part III of the Constitution of India".

In this case Satyajit Kumar and others versus State of Jharkhand and others, the Court also noted that as per Article 16(3) read with Article 35, local domicile reservation can be provided by only through a law enacted by the Parliament and the State Legislature has no power to do so. Therefore, the notification was held to be violating Articles 16(3) and 35 as well. The Court declared the notification to be void under Article 13 for violating fundamental rights and declared it to be ultra vires.

The Court followed the law laid down by a Constitution Bench of the Supreme Court in 2020 in the case Chebrolu Leela Prasad Rao and others versus State of Andhra Pradesh, by which the 100% reservation given for Scheduled Tribes members in teaching posts in Scheduled Areas in Andhra Pradesh was struck down as unconstitutional.

In the present case, a two judge bench comprising Justices MR Shah and BV Nagarathna, which was considering a batch of appeals filed by the State of Jharkhand and some individuals against the High Court's judgment which quashed the notification, held that the legal issues are covered by the judgment in Chebrolu Leela Prasad.

The State's argument was primarily premised on the 5th Schedule of the Constitution, which gives power to the Governor to exempt the application of Parliamentary or State laws in scheduled areas.

The Court summarized the issues involved in the case as follows :

I. Whether in exercise of powers conferred under paragraph 5(1) of the Fifth Schedule to the Constitution of India, whether, the Governor can provide for 100% reservation contrary to Part III of the Constitution of India, more particularly, guaranteed under Article 16(1) and (2) ?

II. Whether in exercise of powers under paragraph 5(1) of the Fifth Schedule to the Constitution of India the Governor has the power to modify the relevant Recruitment Rules framed under Article 309 of the Constitution of India ?

The judgment authored by Justice Shah noted that the issues are answered by the Constitution Bench.

Governor's power under Schedule 5 cannot override fundamental rights

Referring to the Constitution Bench decision, the Court observed :

"The power of the Governor is pari passu with the legislative power of Parliament and the State. The legislative power can be exercised by the Parliament or the State subject to the provisions of Part III of the Constitution. Thereafter, it is ultimately observed and held that the power of the Governor does not supersede the fundamental rights guaranteed under Part III of the Constitution. It has to be exercised subject to Part III and other provisions of the Constitution".

The Constitution Bench had further noted that  "when Para 5 of the Fifth Schedule confers power on the Governor, it is not meant to confer an arbitrary power. The Constitution can never aim to confer any arbitrary power on the constitutional authorities. They are to be exercised in a legal and rational manner keeping in view the objectives and provisions of the Constitution. The powers are not in derogation but in the furtherance of Constitutional aims and objectives."

Schedule 5 cannot be read as conferring upon the Governor absolute power and/or unfettered power, notwithstanding the provisions contained in Part III of the Constitution.

100% reservation is impermissible and discriminatory

Referring to Chebrolu Leela, the judgment stated that the reservation that is permissible by protective mode, by making it 100 percent would become discriminatory and impermissible. It is further observed and held that the opportunity of public employment cannot be denied unjustly to the incumbents, and it is not the prerogative of a few. The citizens have equal rights, and the total exclusion of others by creating an opportunity for one class is not contemplated by the founding fathers of the Constitution of India.

Governor cannot override rules framed under Article 309

Following Chebrolu Leela, it was further held that the exercise of powers by the Governor under para 5(1) of the Fifth Schedule of the Constitution of India modifying Recruitment Rules, 2015 which are framed under Article 309 of the Constitution of India which can be said to be subordinate legislation and cannot be said to be an Act or the Law made by the Parliament and / or State Legislature is beyond the scope and ambit of Governor's power under para 5(1) of the Fifth Schedule of the Constitution of India.

Agreeing with the High Court's verdict, the Court stated :

"Applying the law laid down by this Court in the case of Chebrolu Leela Prasad Rao (supra) and in view of the above discussion and for the reasons stated above, the High Court has not committed any error in concluding and holding that the Notification No.5938 and Order No.5939 dated 14.7.2016 issued by the State Government providing 100% reservation for the local residents of concerned Scheduled Districts/Areas as being unconstitutional and ultra vires Articles 14, 13(2), 15 and 16(2) of the Constitution of India". 

Rejects plea to protect already made appointments

The Court said that the appointments already made under the 2016 notification cannot be protected once it has been held to be void.

"Once the Notification/Order dated 14.07.2016 are held to be ultra vires, as a necessary consequences, appointments made pursuant to such unconstitutional Notification/Order shall have to be set aside and such appointments as such cannot be regularized", the Court held stating that void appointments cannot be regularized.

Case Title : Satyajit Kumar and others versus State of Jharkhand and others |

Citation : 2022 LiveLaw (SC) 651

Appearances : Dr.Rajeev Dhavan,  Shri Vikas Singh, Shri R Venkataramani Ms Vibha Dutta Makhija for successful candidates in scheduled areas; Shri Kapil Sibal and Shri Sunil Kumar, Senior Advocates for the State of Jharkhand; Shri Ranjit Kumar and Shri Gopal Sankaranarayanan for contesting respondents; Shri Ajit Kumar Sinha, Shri Colin Gonsalves and Shri Pallav Sisodia, Senior Advocates for intervenors.

Headnotes

Constitution of India 1950 - Article 16 - 100% reservation is discriminatory and impermissible -quashes Jharkhand Govt notification providing 100% reservation for local residents in Scheduled Districts for Govt Posts in Class III & Class IV 

Constitution of India 1950 - Article 16(2)- 100% reservation provided for the local residents of the concerned Scheduled Districts / Areas only would be violative of Article 16(2) of the Constitution of India and affecting rights of the other candidates / citizens of non­scheduled areas / Districts guaranteed under Part III of the Constitution of India (Para 20, 23) - Followed Chebrolu Leela Prasad Rao and others versus State of Andhra Pradesh (2021) 11 SCC 401

Constitution of India 1950 - Article 16(3), 35 - Under Article 16(3) of the Constitution of India, it is the Parliament alone, which is authorized to make any law prescribing, in regard to a class or classes of employment or appointment to an office under the Government of, or any local or other authority within, a State of Union Territory, any requirement as to residence within the State or Union territory prior to such employment or appointment. As per Article 35 of the Constitution of India, notwithstanding anything contained in the Constitution, the Parliament shall have and the Legislature of a State shall not have the power to make laws with respect to any of the matters which, under clause (3) of Article 16 may be provided for law made by Parliament. Therefore, impugned Notification/Order making 100% reservation for the local resident of the concerned Scheduled Area/Districts (reservation on the basis of resident) is ultra vires to Article 35 r/w Article 16(3) of the Constitution of India (Para 24) - Followed Chebrolu Leela Prasad Rao

Constitutuin of India 1950 - Fifth Schedule - "The power of the Governor is pari passu with the legislative power of Parliament and the State. The legislative power can be exercised by the Parliament or the State subject to the provisions of Part III of the Constitution. Thereafter, it is ultimately observed and held that the power of the Governor does not supersede the fundamental rights guaranteed under Part III of the Constitution. It has to be exercised subject to Part III and other provisions of the Constitution (18.4)- Followed Chebrolu Leela Prasad Rao

Constitution of India 1950 - Governor's Powers -Schedule 5 cannot be read as conferring upon the Governor absolute power and/or unfettered power, notwithstanding the provisions contained in Part III of the Constitution - Followed Chebrolu Leela Prasad Rao

Constitution of India 1950 - Article 309- which are framed under Article 309 of the Constitution of India which can be said to be subordinate legislation and cannot be said to be an Act or the Law made by the Parliament and / or State Legislature is beyond the scope and ambit of Governor's power under para 5(1) of the Fifth Schedule of the Constitution of India (Para 20(3))- Followed Chebrolu Leela Prasad Rao

Service Law - There is difference between void and illegal appointments- Void appointments cannot be regularized-State of Karnataka and Ors. Vs.Umadevi (2006) 4 SCC 1 followed.

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