Supreme Court of India
CHEBROLU LEELA PRASAD RAO & ORS.versusSTATE OF A.P. & ORS.
- Citation
- 2020 INSC 344
- Decided
- 22 April 2020
- Disposal
- Appeal(s) allowed
- Bench
- ARUN MISHRA
Holding
Paragraph 5(1) of Schedule V does not permit the Governor to enact new law, amend subordinate legislation, or override Part III rights, and therefore G.O. Ms. 3/2000 providing 100% reservation is unconstitutional and is quashed.
Summary
The Supreme Court examined the validity of G.O. Ms. No.3/2000 issued by the erstwhile Andhra Pradesh Government, which provided 100% reservation for Scheduled Tribe candidates in teacher posts in scheduled areas. The Court held that under Paragraph 5(1) of Schedule V, the Governor may only exclude or modify an existing Act of Parliament or the State Legislature, and cannot create a new law or amend subordinate legislation such as rules framed under Article 309. Consequently, the Governor could not lawfully amend the A.P. State and Subordinate Service Rules, 1996, and the reservation exceeded the constitutional ceiling of 50% set by Indira Sawhney. The order also conflicted with the Presidential order under Article 371D and violated Articles 14, 15 and 16 of the Constitution. The Court quashed G.O. Ms.3/2000, held the 100% reservation unconstitutional, and allowed the appeals with a conditional saving of existing appointments.
Issues considered
- The scope of Paragraph 5(1) of Schedule V: whether it empowers the Governor to make new law or amend subordinate legislation.
- Whether the Governor's power under Paragraph 5(1) can override fundamental rights under Part III of the Constitution.
- Whether the Governor's order conflicts with the Presidential order issued under Article 371D.
- The permissibility of 100% reservation for Scheduled Tribes in teacher posts under Articles 14, 15 and 16.
- Whether the notification constitutes a classification under Article 16(1) or a reservation under Article 16(4).
- The reasonableness of the eligibility condition requiring continuous residence since 26 January 1950.
Legislation cited
- Andhra Pradesh Education Act, 1982s. 78, s. 79
- Andhra Pradesh Panchayat Raj Act, 1994s. 169, s. 195, s. 268
- Andhra Pradesh Regulation of Reservation and Appointment to Public Services Act, 1997
- Andhra Pradesh State and Subordinate Service Rules, 1996s. 22, s. 22A
- Constitution of Indias. Art.14, s. Art.15, s. Art.16(1), s. Art.16(4), s. Art.309, s. Art.371D, s. Schedule V Para 5(1)
Subjects
reservationscheduled areasFifth Schedulegovernor's powerArticle 16equalitynon-obstante clause100% reservationsubordinate legislationfundamental rights
Judgment
28 [2020]
SUPREME COURT 6 S.C.R. 28
REPORTS [2020] 6 S.C.R.
A CHEBROLU LEELA PRASAD RAO & ORS.
v.
STATE OF A.P. & ORS.
(Civil Appeal No. 3609 of 2002)
B APRIL 22, 2020
[ARUN MISHRA, INDIRA BANERJEE, VINEET SARAN,
M. R. SHAH AND ANIRUDDHA BOSE, JJ.]
Constitution of India – Arts. 14, 15, 16(1), 16(4), 244 and
C 371 D; Para 5(1) of Schedule V – A.P. Education Act, 1982 – A.P.
Regulation of Reservation and Appointment to Public Services Act,
1997 – The G.O.Ms. No. 3/2000 issued by the erstwhile State of
Andhra Pradesh provided 100% reservation to the Scheduled Tribe
candidates for the post of teachers in the schools in the scheduled
areas in the State of Andhra Pradesh – Validity of – Held: G.O.Ms.
D No. 3/2000 providing for 100% reservation is not permissible under
the Constitution, the outer limit is 50% as specified in Indra Sawhney
case – By providing 100% reservation to the scheduled tribe has
deprived the scheduled castes and other backward classes also of
their due representation – The concept of reservation is not
proportionate but adequate – The action is thus unreasonable and
E violative of provisions of Arts. 14, 15 and 16 of the Constitution of
India – Consequently, G.O.Ms.No. 3/2000 is quashed.
Constitution of India – Para 5(1) of Schedule V – Scope of –
Held: The Governor in the exercise of powers under para 5(1) of
Schedule V of the Constitution, can exercise the powers concerning
F any particular Act of the Parliament or the legislature of the State –
Para 5(1) of Schedule V confers power upon the Governor to
exclude law, which is applicable in a Scheduled area – It also
empowers the Governor to apply the same with exceptions and
modifications as he deems fit – However, no new law can be
formulated while exercising power under para 5(1) of Schedule V
G
– The power of modification cannot extend to re-writing the entire
statute.
Constitution of India – Para 5(1) of Schedule V and Art. 309
– A.P. State and Subordinate Service Rules, 1996 – rr. 22, 22 A –
G.O.Ms. No. 3/2000 issued by the erstwhile State of Andhra Pradesh
H
28
CHEBROLU LEELA PRASAD RAO & ORS. v. 29
STATE OF A.P. & ORS.
provided 100% reservation to the Scheduled Tribe candidates for A
the post of teachers in the schools in the scheduled areas – The
G.O.Ms. No. 3/2000, inter alia, refers to the Rules, 1996 and the
said rules have been framed under proviso to Art. 309 of the
Constitution – The rules 22 and 22 A framed u/Art.309 were amended
– Held: The power of the Governor under Para 5(1) of Schedule V B
of the Constitution is restricted to modifying or not to apply, Acts of
the Parliament or legislature of the State – Thus, the rules could not
have been amended in the exercise of the powers conferred under
Para 5(1) Schedule V – The rules made under the proviso to Art.
309 of the Constitution cannot be said to be an enactment by the
State legislature – Thus, it was not open to the Governor to issue C
the impugned G.O.Ms. No. 3/2000.
Constitution of India – Para 5(1) of Schedule V – Power of
Governor extend to subordinate legislation or not – Held: The power
of the Governor under Para 5(1), Fifth Schedule to the Constitution
does not extend to subordinate legislation, it is with respect to an D
Act enacted in the sovereign function by the Parliament or legislature
of the State which can be dealt with.
Constitution of India – Para 5(1) of Schedule V – Can exercise
of the power conferred in para 5(1) of the fifth Schedule override
fundamental rights guaranteed under Part-III – Held: The power E
of the Governor does not supersede the fundamental rights under
part-III of the Constitution – When Para 5 of the fifth Schedule
confers power on the Governor, it is not meant to be conferral of
arbitrary power – The power is not in derogation but the furtherance
of the Constitutional aims and objectives.
F
Constitution of India – Para 5(1) of Schedule V – Effect of
the non-obstante clause – Held: The provision of the fifth Schedule
beginning with the words “notwithstanding anything in this
constitution” cannot be construed as taking away the provision
outside the limitation on the amending power and has to be
harmoniously construed consistent with the fundamental principles G
and basic features of the Constitution.
Constitution of India – Para 5(1) of Schedule V – Whether
there is any conflict between the Presidential order and G.O.Ms.
No. 3/2000 issued under the order of the Governor under para
H
30 SUPREME COURT REPORTS [2020] 6 S.C.R.
A 5(1) of the Schedule V – Held: The Presidential order was issued
providing district/zone for local cadre, on the other hand, the order
issued by the Governor has reserved all the posts of teachers in the
Scheduled Areas for Schedule Tribe candidates – The aspiring
candidates of the district/ zone in the Scheduled Area cannot apply
for the post of teachers in the district as 100% reservation was
B
made vide G.O.Ms. No. 3/2000 by the Governor and it is also not
disputed that aspiring candidates cannot apply outside the district/
zone because of the restrictions u/Art. 371D of the Constitution –
Thus, there is a clear repugnancy between the notification issued
by the president and the subsequent order issued by the Governor
C under Para 5(1) of the Schedule V – It is not possible to harmonise
both notifications – The Governor is competent to issue an order
which is not in conflict with Presidential Order – The Governor
could not have issued the order in derogation to the Presidential
order – In the instant case, 100% reservation could not have been
provided as that violates the Presidential Order.
D
Constitution of India – Arts. 16(1) and 16(4) – Whether
notification G.O.M. No. 3/2000 contains classification u/Art. 16(1)
and does not provide reservation u/Art. 16(4) of the Constitution –
Held: G.O.Ms No. 3/2000 provided 100% reservation – It cannot
be said to be a case of classification that has been made u/Art.
E 16(1) – The incumbents of various categories have the right to stake
a claim for the employment of which they have been deprived –
Thus, it is not a matter of classification – The reservation u/Art.
16(4) was made – The order providing 100% reservation is arbitrary,
illegal, impermissible and unconstitutional.
F Constitution of India – G.O.Ms No. 3/2000 required candidate
or the parents to reside in the area continuously w.e.f. 26.01.1950
to date – Propriety of – Held: There is no rhyme or reason to require
continuous residence for last 50 years or more – It overlooks the
rights of various other persons who might have settled decades
G together in the area in question – It is discriminatory vis-a-vis to the
Scheduled tribes also settled in the area – The conditions of eligibility
in the notification with cut-off date i.e. 26.01.1950, to avail benefit
of reservation, is unreasonable and arbitrary one.
H
CHEBROLU LEELA PRASAD RAO & ORS. v. 31
STATE OF A.P. & ORS.
Allowing the appeals, the Court A
HELD: What is the scope of Para 5(1) of Schedule V of the
Constitution of India?; and Does the provision empower the
Governor to make a new law?
1. Para 5(1) of Schedule V to the Constitution confers power
upon the Governor to exclude law, which is applicable in a B
scheduled area. It also empowers the Governor to apply the same
with exceptions and modifications as he deems fit. However, the
power to exclude an area from applicability, modification, and to
create exceptions in the law, which was applicable in the area,
cannot be said to be at par to the regulation-making power C
conferred under para 5(2) of the said Rules. [Para 48][71-F-G]
2. The exceptions and modifications are created by the law,
which is already applicable in the area. It is not the formulation of
a new law which is contemplated under Para 5(1) of Schedule V.
No new law can be formulated while exercising power under Para D
5(1) of Schedule V. The power of modification cannot extend to
re-writing the entire statute. The power cannot be used to
supplant the law, which is applicable. The law has to be applied
only with exceptions or modifications. It cannot totally supersede
the existing law, which is wholly opposed to the idea of applicable
law as in that case it would tantamount to the new law and not the E
modification or exception or creation of exceptions or
modifications to the applicable law. The object and substance of
law applicable cannot be changed within the purview of Para 5(1),
though the applicability of applicable law can be excluded. In case
the Governor decides the law to remain applicable, he has the F
power only to create exceptions and to modify the same, not to
create a new one juxtaposed to the same applicable law.
[Para 49][72-A-C]
3. Thus, the Governor in the exercise of powers under Para
5(1), Fifth Schedule of the Constitution, can exercise the powers G
concerning any particular Act of the Parliament or the legislature
of the State. The Governor can direct that such law shall not apply
to the Scheduled Areas or any part thereof. The Governor is
empowered to apply such law to the Scheduled Area or any part
H
32 SUPREME COURT REPORTS [2020] 6 S.C.R.
A thereof in the State subject to such exceptions and modifications
as he may specify in the notification and can also issue a
notification with retrospective effect. [Para 154][160-G-H]
4. The Governor is empowered under Para 5(1), Fifth
Schedule of the Constitution, to direct that any particular Act of
B Parliament or the Legislature of the State, shall not apply to a
Scheduled Area or apply the same with exceptions and
modifications. The Governor can make a provision within the
parameters of amendment/ modification of the Act of Parliament
or State legislature. The power to make new laws/regulations, is
provided in Para 5(2), Fifth Schedule of the Constitution for the
C purpose mentioned therein, not under Para 5(1) of the Fifth
Schedule to the Constitution of India. [Para 154][161-A-B]
Does the power under Para 5(1) of the Fifth Schedule to
the Constitution of India extend to subordinate legislation?
D 5. In substance, Rules 22 and 22A of A.P. State and
Subordinate Service Rules, 1996 framed under Article 309 have
been amended, which could not have been done as that is not the
Act of the Parliament or the legislature of the State. Thus, the
Governor could not have exercised power concerning rule framed
under the proviso to Article 309 of the Constitution. [Para 54][73-
E E-F]
6. The rules framed under the proviso to Article 309 of the
Constitution cannot be said to be the Act of Parliament or State
legislature. Though the rules have the statutory force, they cannot
be said to have been framed under any Act of Parliament or State
F legislature. The rules remain in force till such time the legislature
exercises power. The power of the Governor under Para 5(1) of
Schedule V of the Constitution is restricted to modifying or not
to apply, Acts of the Parliament or legislature of the State. Thus,
the rules could not have been amended in the exercise of the
G powers conferred under Para 5(1) of Schedule V. The rules made
under proviso to Article 309 of the Constitution cannot be said
to be an enactment by the State legislature. Thus, in the opinion
of this Court, it was not open to the Governor to issue the
impugned G.O. No.3/2000. [Para 57][75-B-C]
H
CHEBROLU LEELA PRASAD RAO & ORS. v. 33
STATE OF A.P. & ORS.
7. The power of the Governor under Para 5(1), Fifth A
Schedule to the Constitution does not extend to subordinate
legislation, it is with respect to an Act enacted in the sovereign
function by the Parliament or legislature of the State which can
be dealt with. [Para 154][161-C]
Can the exercise of the power conferred in Para 5 of the B
Fifth Schedule override fundamental rights guaranteed under Part
III?
8. The power is conferred on the Governor to deal with the
scheduled areas. It is not meant to prevail over the Constitution.
The power of the Governor is pari passu with the legislative power C
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. In the opinion of this Court, the
power of the Governor does not supersede the fundamental rights
under Part III of the Constitution. It has to be exercised subject
to Part III and other provisions of the Constitution. When Para 5 D
of the Fifth Schedule confers power on the Governor, it is not
meant to be conferral of arbitrary power. The Constitution can
never aim to confer any arbitrary power on the constitutional
authorities. They are to be exercised in a rational manner keeping
in view the objectives of the Constitution. The powers are not in E
derogation but the furtherance of the constitutional aims and
objectives. [Para 78][90-E-G]
9. Thus, the Governor’s power under Para 5(1) of the Fifth
Schedule to the Constitution is subject to some restrictions, which
have to be observed by the Parliament or the legislature of the F
State while making law and cannot override the fundamental rights
guaranteed under Part III of the Constitution. [Para 154][161-D]
Whether the exercise of power under the Fifth Schedule of
the Constitution overrides any parallel exercise of power by the
President under Article 371D? G
10. The main question to be considered is whether there is
any conflict between the Presidential Order and the G.O. Ms.
No. 3 of 2000 issued under the order of the Governor under Para
5(1) of the Fifth Schedule of the Constitution. Considering the
H
34 SUPREME COURT REPORTS [2020] 6 S.C.R.
A geographical disparity in public employment, Article 371D was
inserted in the Constitution, providing candidates from certain
districts/zones to form the local cadre for different posts for
different parts of the States. The Presidential Order was issued
providing district/zone for local cadre, on the other hand, the order
issued by the Governor has reserved all the posts of teachers in
B
the Scheduled Areas for Schedule Tribe candidates. The aspiring
candidates of the district/zone in the Scheduled Area cannot apply
for the post of teachers in the district as 100 per cent reservation
was made vide G.O.Ms. No. 3 of 2000 by the Governor. It is also
not disputed that aspiring candidates cannot apply outside the
C district/zone because of the restrictions under Article 371D of
the Constitution. As there is 100 per cent reservation provided
for the Scheduled Tribes in the Scheduled Areas, other candidates
of Scheduled Castes, General and Other Backward Classes
category cannot apply at all in other districts. They are being
denied the opportunity of getting the employment as against the
D
posts in question. Thus, the order issued by the Governor is
clearly in conflict with the Presidential Order issued under Article
371D. The candidates of local areas or other candidates except
for Scheduled Tribes have been deprived of the opportunity of
seeking public employment because of the order issued by the
E Governor, and they cannot apply outside the local area in view of
the Presidential notification. [Para 89][101-D-H; 102-A]
11. The Governor is competent to issue an order which is
not in conflict with the Presidential Order. The Governor issued
the order when the Presidential Order was already in force in the
F entire State. The Governor could not have issued the order in
derogation to the Presidential Order. In opinion of this Court,
100 per cent reservation could not have been provided as that
violates the Presidential Order. [Para 90][102-D]
12. Thus, in the exercise of power under Para 5(1) of the
G Fifth Schedule to the Constitution of India, the Governor cannot
override the notification issued by the President in the exercise
of powers under Article 371D. The power has to be exercised
harmoniously with such an order issued under Article 371D, not
in conflict thereof. [Para 154][161-E]
H
CHEBROLU LEELA PRASAD RAO & ORS v. 35
STATE OF A.P. & ORS.
Whether 100% reservation is permissible under the A
Constitution?
13. By providing 100 percent reservation to the scheduled
tribes has deprived the scheduled castes and other backward
classes also of their due representation. The concept of
reservation is not proportionate but adequate, as held in Indra B
Sawhney. The action is thus unreasonable and arbitrary and
violative of provisions of Articles 14, 15 and 16 of the Constitution
of India. It also impinges upon the right of open category and
scheduled tribes who have settled in the area after 26th January
1950. The total percentage of reservation provided for Scheduled
Tribes in the State is 6%. By providing 100 percent reservation C
in the scheduled areas, the rights of the tribals, who are not
residents of the scheduled areas, shall also be adversely affected.
As per Presidential order under Article 371-D, they cannot stake
their claim in other areas. The posts in other areas are to be
reduced by making a 100% reservation in a particular area. D
[Para 127][141-E-G]
14. A reservation that is permissible by protective mode,
by making it 100 percent would become discriminatory and
impermissible. The opportunity of public employment cannot be
denied unjustly to the incumbents, and it is not the prerogative E
of 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. Equality of
opportunity and pursuit of choice under Article 51-A cannot be
deprived of unjustly and arbitrarily. [Para 134][143-D]
F
15. This Court finds that G.O. Ms. No.3/2000 is wholly
impermissible and cannot be said to be legally permissible and
constitutionally valid. It can be said that action is not only irrational,
but it violates the rights guaranteed under Part III of the
Constitution and is not sustainable. [Para 135][143-F]
G
16. Thus, G.O.Ms. No.3/2000 providing for 100 per cent
reservation is not permissible under the Constitution, the outer
limit is 50 per cent as specified in Indra Sawhney. [Para 154][161-
E-F]
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36 SUPREME COURT REPORTS [2020] 6 S.C.R.
A Whether the notification merely contemplates a
classification under Article 16(1) and not reservation under Article
16(4)?
17. The 100 percent reservation has been provided. It
cannot be said to be a case of classification that has been made
B under Article 16(1). Assuming, for the sake of argument, it is to
be a case of classification under Article 16(1), it would have been
discriminatory and grossly arbitrary without rationale and violative
of constitutional mandate. [Para 140][154-C]
18. The incumbents of various categories have the right to
C stake a claim for the employment of which they have been
deprived. Thus, it is not a matter of classification. The reservation
under Article 16(4) was made. By way of 100% reservation, the
employment to others was illegally deprived and they have no
chance of employment as against the post of teachers elsewhere
because of the order under Article 371D in which district/zone is
D a unit. It is a clear case of tinkering with reservation. [Para 141]
[154-D]
19. Thus, the notification in question cannot be treated as
classification made under Article 16(1). Once the reservation has
been provided to Scheduled Tribes under Article 16(4), no such
E power can be exercised under Article 16(1). The notification is
violative of Articles 14 and 16(4) of the Constitution of India.
[Para 154][161-F]
Whether the conditions of eligibility that is the origin and
cut-off date to avail the benefit of reservation in the notification
F is reasonable:
20. The G.O. in question requires candidate or the parents
to reside in the area continuously w.e.f. 26.1.1950 to date. There
is no rhyme or reason to require continuous residence for last 50
years or more. It overlooks the rights of various other persons
G who might have settled decades together in the area in question.
It is discriminatory vis-a-vis to the scheduled tribes also settled
in the area and it has no purpose to be achieved and imposes
restriction which was not even provided in the Presidential Order
issued under Article 371D of the Constitution of India with respect
H
CHEBROLU LEELA PRASAD RAO & ORS. v. 37
STATE OF A.P. & ORS.
to residential or educational requirements. Thus, it does not lay A
down valid conditions. The same is fixed in highly unreasonable
and arbitrary manner and limits zone of consideration to miniscule
where an opportunity for public employment has to be afforded
to all concerned with reasonable rights. The conditions of
eligibility in the notification with a cut-off date, i.e., 26.1.1950, to
B
avail the benefits of reservation, is unreasonable and arbitrary
one. [Paras 147 and 154][157-D-E; 166-G]
Indra Sawhney & Ors. v. Union of India & Ors., (1992)
Suppl. 3 SCC 217 : [1992] 2 Suppl. SCR 454 –
followed.
C
Ram Kirpal Bhagat and Ors. v. The State of Bihar (1969)
3 SCC 471 : [1970] 3 SCR 233; Hota Venkata Surya
Sivarama Sastry and Anr. v. State of Andhra Pradesh
[1962] 2 SCR 535; Edwingson Bareh v. State of Assam
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Ors., (1997) 8 SCC 191; Puranlal Lakhanpal v. D
President of India & Ors. AIR 1961 SC 1519 : [1962]
1 SCR 688; Bombay Dyeing & Mfg. Co. Ltd. (3) v.
Bombay Environmental Action Group & Ors., (2006) 3
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K.P. Jain & Anr., (1979) 3 SCC 54 : [1979] 2 SCR E
1184; S.R. Chaudhuri v. State of Punjab & Ors., (2001)
7 SCC 126 : [2001] 1 Suppl. SCR 621; Col. A.S. Iyer
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(1974) 4 SCC 3 : [1974] 2 SCR 348; Maneka Gandhi
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H
38 SUPREME COURT REPORTS [2020] 6 S.C.R.
A Anr. v. Commissioner of Commercial Taxes and Ors.,
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B
Jatindra v. Province of Bihar, (1949) FLJ 225;
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C Kesavananda Bharti v. State of Kerala, (1973) 4 SCC
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D Harinder Kaur Paintal & Ors., (1990) 2 SCC 746 :
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Kanapravan Kalliani Amma & Ors. v. K. Devi & Ors.,
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4 SCC 532, N.T.R. University of Health Science,
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G (2003) 5 SCC 350 : [2003] 2 SCR 781; R.S. Raghunath
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SCR 421, Sanwarmal Kejriwal v. Vishwa Co-operative
H
CHEBROLU LEELA PRASAD RAO & ORS. v. 39
STATE OF A.P. & ORS.
Housing Society Ltd. and Ors., [1990] 1 SCR 862, The A
South India Corporation (P) Ltd. v. The Secretary, Board
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B
4 SCC 526; M.P. Oil Extraction & Anr. v. State of M.P.
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D
2 SCC 310 :[1976] 1 SCR 906; K. Krishna Murthy
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Students Union v. A.I.I.M.S., JT 2001 (7) SC 12;
Lingappa Pochanna Appelwar & Ors. v. State of E
Maharashtra & Ors. (1985) 1 SCC 479 : [1985] 2 SCR
224; Barium Chemicals v. Company Law Board AIR
1967 SC 295 : [1966] Suppl. SCR 311; Jarnail Singh
& Ors. v. Lachhmi Narain Gupta & Ors., (2018) 10
SCC 396 : [2018] 10 SCR 663 – referred to.
F
Case Law Reference
[1970] 3 SCR 233 relied on Para 40
[1962] 2 SCR 535 relied on Para 41
[1966] 2 SCR 770 relied on Para 42 G
(1997) 8 SCC 191 referred to Para 43
[2015] 5 SCR 365 referred to Para 43
H
40 SUPREME COURT REPORTS [2020] 6 S.C.R.
A [1962] 1 SCR 688 relied on Para 45
[2006] 2 SCR 920 relied on Para 46
[1979] 2 SCR 1184 relied on Para 47
[1981] 1 SCR 1024 referred to Para 55
B [1973] Suppl. SCR 1 referred to Para 58
[1981] 2 SCR 1 referred to Para 59
[2007] 1 SCR 706 referred to Para 60
[2001] 1 Suppl. SCR 621 relied on Para 63
C
[1980] 1 SCR 1036 relied on Para 64
[1981] 2 SCR 79 relied on Para 65
[1974] 2 SCR 348 relied on Para 66
[1978] 2 SCR 621 relied on Para 67
D
[1990] 2 SCR 84 referred to Para 68
[1993] 1 SCR 891 relied on Para 71
[1994] 5 SCR 563 relied on Para 72
[1996] 2 Suppl. SCR 1 referred to Para 75
E
[1992] 1 SCR 406 relied on Para 76
[1986] 3 SCR 866 referred to Para 77
[2006] 6 Suppl. SCR 189 referred to Para 81
F [1993] 1 SCR 340 referred to Para 81
[1970] 1 SCR 115 referred to Para 82
[2015] 14 SCR 328 referred to Para 82
(1988) 4 SCC 532 referred to Para 82, 83
G (1988) Suppl. SCC 794 referred to Para 82
[2003] 2 SCR 781 referred to Para 82
[1977] 2 SCR 421 referred to Para 83
[1990] 1 SCR 862 referred to Para 83
H
CHEBROLU LEELA PRASAD RAO & ORS. v. 41
STATE OF A.P. & ORS.
[1964] 4 SCR 280 referred to Para 83 A
(1988) 4 SCC 526 referred to Para 86
(1988) Suppl. SCC 794 referred to Para 86
[2001] 5 Suppl. SCR 179 relied on Para 87
[1990] 1 SCR 561 relied on Para 88 B
[1997] 1 Suppl. SCR 671 referred to Para 91
(2012) 12 SCC 419 referred to Para 92
[2003] 1 Suppl. SCR 638 referred to Para 92
C
[2009] 9 SCR 791 referred to Para 92
[2011] 13 SCR 1077 referred to Para 92
[1991] 1 Suppl. SCR 46 referred to Para 95
[1963] Suppl. 1 SCR 439 relied on Para 110
D
[1976] 1 SCR 906 referred to Para 111
[2006] 7 Suppl. SCR 336 relied on Para 112
[2010] 6 SCR 972 referred to Para 114
[1964] 6 SCR 368 referred to Para 116
E
[1985] 2 SCR 224 referred to Para 118
[1966] Suppl. SCR 311 referred to Para 121
[2018] 10 SCR 663 referred to Para 123
[1992] 2 Suppl. SCR 454 followed Para 137, 138 F
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 3609
of 2002.
From the Judgment and Order dated 23.11.2001 of the High Court
of Judicature, Andhra Pradesh at Hyderabad in Writ Petition No. 20239
of 2000. G
With
C.A. No. 7040 of 2002.
H
42 SUPREME COURT REPORTS [2020] 6 S.C.R.
A Dr. Rajeev Dhawan, A. Aadinarayan Rao, R. Venkataramani,
Sr. Advs., C.S.N. Mohan Rao, R. Santhaan Krishnan, Lokesh Sharma,
Aditya Kumar Archiya, Ms. Sangeeta Chandra, Praveen Kumar Pandey,
Anand Padmanabhan, G. Ramakrishna Prasad, Suyodhan Byrapaneni,
Ms. Filza Moonis, Bharat J. Joshi, Ms. Tatini Basu, Mohd. Wasay Khan,
G. V. R. Choudary, K. Shivraj Choudhuri, Harsh Singhal, Hitesh Kumar
B
Sharma, S. Udaya K. Sagar, Ms. Swati Bhardwaj, Mohith Rao, G. N.
Reddy, T. Vijaya Bhaskar Reddy, Digvijay Harichandan, Ms. C. K.
Sucharita, Hemal Kiritkumar Sheth, Shivam Singh, Harpreet Singh Gupta,
Ms. Udita Singh, Lakshmi Raman Singh, John Mathew, M/s. Venkat
Palwai Law Associates, Advs. for the appearing parties.
C The Judgment of the Court was delivered by
ARUN MISHRA, J.
1. In the reference, the validity of the Government Office
Ms. No.3 dated 10.1.2000 issued by the erstwhile State of Andhra Pradesh
D providing 100% reservation to the Scheduled Tribe candidates out of
whom 33.1/3% shall be women for the post of teachers in the schools in
the scheduled areas in the State of Andhra Pradesh, is under challenge.
2. Several questions have been referred for consideration in the
order dated 11.1.2016. We have renumbered question nos.1(a)(b)(c)
E and (d) based on interconnection. The questions are as follows:
“(1) What is the scope of paragraph 5(1), Schedule V to the
Constitution of India?
(a) Does the provision empower the Governor to make a new
law?
F
(b) Does the power extend to subordinate legislation?
(c) Can the exercise of the power conferred therein override
fundamental rights guaranteed under Part III?
(d) Does the exercise of such power override any parallel exercise
G of power by the President under Article 371D?
(2) Whether 100% reservation is permissible under the
Constitution?
(3) Whether the notification merely contemplates a classification
under Article 16(1) and not reservation under Article 16(4)?
H
CHEBROLU LEELA PRASAD RAO & ORS. v. 43
STATE OF A.P. & ORS. [ARUN MISHRA, J.]
(4) Whether the conditions of eligibility (i.e., origin and cut-off A
date) to avail the benefit of reservation in the notification are
reasonable?”
3. The facts in the backdrop project that by G.O.Ms. No.275 dated
5.11.1986, issued by the Governor in exercise of power under para 5(1)
of Schedule V to the Constitution of India, directing the posts of teachers B
in educational institutions in the scheduled tribe areas shall be reserved
for Scheduled Tribes only notwithstanding anything contained in any other
order or rule or law in force. The Andhra Pradesh Administrative Tribunal
(for short “the tribunal”) quashed the notification by order dated 25.8.1989.
The order was questioned in this Court in C.A. Nos.2305-06/1991, which
was dismissed as withdrawn on 20.3.1998. C
4. Another G.O.Ms. No.73 dated 25.4.1987 was issued to amend
GOMs. No.275 dated 5.11.1986 to allow the appointment of non-tribals
to hold the posts of teachers in the scheduled areas till such time the
qualified local tribals were not made available. After that, non-tribals
who were appointed as teachers in the scheduled areas filed Writ Petition D
No.5276/1993 in the High Court of Andhra Pradesh at Hyderabad against
termination of their services. The same was allowed vide judgment and
order dated 5.6.1996 and GOMs. No.73 dated 25.4.1987, and the
advertisements were held to be violative of Article 14 of the Constitution
of India. In writ appeal, the order of the Single Bench was set aside by E
the Division Bench vide judgment and order dated 20.8.1997. The decision
in W.P. No.16198/1988 thus prevailed. The non-tribal appointees
preferred Civil Appeal 6437/1998 before this Court, which was allowed
on 18.12.1998.
5. After this Court rendered the decision on 18.12.1998, the F
Government issued a fresh notification vide GOMs. No. 3 dated 10.1.2000
effectively providing for 100% reservation in respect of appointment to
the posts of teachers in the scheduled areas. The tribunal set aside the
GOMs. Aggrieved thereby, writ petitions were filed in the High Court, a
3-Judge Bench by majority upheld the validity of G.O. Aggrieved by the
same, the appeals have been preferred. G
6. The majority view opined that historically scheduled areas were
treated specially, and affirmative action taken was in the constitutional
spirit. The notification was a step for increasing literacy in the scheduled
areas and also aimed at providing the availability of teachers in every
H
44 SUPREME COURT REPORTS [2020] 6 S.C.R.
A school in the scheduled areas. 100% reservation can be sustained on the
ground that it was based on intelligible differentia, and the classification
has nexus with the object sought to be achieved. The G.O. became
necessary considering the phenomenal absenteeism of the teachers in
the schools situated in the scheduled areas and was a step in aid to
promote educational developments of tribals. In extraordinary situations,
B
reservation can exceed 50%. The Governor possessed the power to
issue the impugned notification under Schedule V, para 5(1) of the
Constitution. The same overrides all other provisions of the Constitution,
including Part III of the Constitution of India.
7. The High Court in the minority view opined that providing 100%
C reservation for Scheduled Tribes in scheduled areas offends the spirit of
Articles 14 and 16 of the Constitution of India. The Governor is not
conferred power to make any law in derogation to Part III or other
provisions of the Constitution of India in the exercise of his power under
Clause I, Para 5 of Schedule V. It was also held that G.O.Ms. No.3 is
D discriminatory as the same adversely affects not only the open category
candidates but also other Scheduled Castes, Scheduled Tribes, and
backward classes. It also opined that the reservation under Article 16(4)
should not exceed 50%. However, little relaxation was permissible. The
rules made under Article 309 of the Constitution could not be treated as
an Act of Parliament or State Legislature.
E
8. G.O.Ms. No.3 dated 10.1.2000, validity of which is questioned,
reserved all posts in the educational institutions within the scheduled
areas in favour of the local Scheduled Tribes. The order is extracted
hereunder:
F “Whereas, under sub-paragraph (1) of paragraph 5 of the Fifth
Schedule to the Constitution of India, the Governor of Andhra
Pradesh may by public notification direct that any particular Act
of Parliament or of Legislature of the State shall not apply to the
Scheduled Areas or any part thereof in the State or shall apply to
a scheduled area or any part thereof subject to specified exceptions
G and modifications;
2. AND WHEREAS, in G.O.Ms.No.275, Social Welfare
Department dated 5.11.1986, a notification has been issued
exercising the powers conferred under sub-paragraph (1) of
paragraph 5 of the Fifth Schedule to the Constitution of India
H
CHEBROLU LEELA PRASAD RAO & ORS. v. 45
STATE OF A.P. & ORS. [ARUN MISHRA, J.]
directing that the posts of teachers in the Educational Institutions A
in the Scheduled Areas of State shall be filled in only by the local
members of the Scheduled Tribes;
3. AND WHEREAS, the Andhra Pradesh Administrative Tribunal
in its order dated 25.8.1989 in R.P.Nos.6377 and 6379 of 1988
quashed the orders issued in G.O.Ms.No.275, Social Welfare B
Department dated 5.11.1986 on the ground that the notification
issued under sub-paragraph (1) of paragraph 5 of the Fifth
Scheduled to the Constitution of India does not reflect the existence
of either a State or a Central Legislation referable for issuing
such notification;
C
4. AND WHEREAS, the Division Bench of the High Court of
Andhra Pradesh in its judgement dated 20-8-1997 in Writ Appeal
No.874 of 1997 filed by the Project Officer, I.T.D.A.,
Rampachodayaram, East Godavari District, directed to continue
the petitioners respondents in their respective posts of teachers
without any break as temporary employees until replaced by the D
qualified local tribals as and when such tribals are available to fill
up those posts;
5. AND WHEREAS, the Andhra Pradesh Administrative Tribunal
subsequentlywhile disposing of O.A.No.4598/97 in its order
dt.22.9.1997 directed the respondents to follow the statutory rules E
while making recruitment to the posts of Secondary Grade
Teachers and also Telugu Pandits, Grade. I in Agency Areas
without taking into consideration of the orders issued in
G.O.Ms.No.275, Social Welfare Department, dated 5.11.1986.
6. AND WHEREAS, the Supreme Court of India while allowing F
Civil Appeal No.6437/98 in its order dated 18th December 1998,
set aside the orders of the Andhra Pradesh Administrative Tribunal
on the ground that the State withdraw the appeals arising out of
the S.L.P. Nos.14562-63 of 1989:
7. AND WHEREAS, the Government considers that rule 4 (b) of G
the Andhra Pradesh School Educational Subordinate Service Rules,
1992 and rule 22A of the Andhra Pradesh State and Subordinate
Service Rules, 1996 shall be modified to the extent that only
Scheduled Tribe Women shall be appointed in Scheduled Areas
against 33 1/3% reservation in respect of direct recruitment;
H
46 SUPREME COURT REPORTS [2020] 6 S.C.R.
A 8. AND WHEREAS, the consultation of the Tribes Advisory
Council has been made as required under sub-paragraph (5) of
paragraph 5 of the Fifth Schedule to the constitution of India.
9. AND WHEREAS, the Government of Andhra Pradesh in order
to strengthen the educational infrastructure in the Scheduled Areas,
B to promote educational development of Tribals, to solve the
phenomenal absenteeism of Teachers in the Schools situated in
Scheduled Areas and with a view to protect the interests of local
tribals have decided to reserve the posts of teachers in favour of
local Scheduled Tribes candidates;
C 10. AND WHEREAS, the Government considered to re-issue
the said orders retrospectively from 5.11.1986 keeping in view
the provisions of sub-paragraph (1) of paragraph 5 of Fifth Schedule
to the Constitution;
11. The following notification will be published in part-IV-B
Extraordinary issue of the Andhra Pradesh Gazette, dated
D
10.1.2000.
NOTIFICATION
In exercise of the power conferred by subparagraph (1) of
paragraph 5 of the Fifth Schedule to the Constitution of India and
E in Supersession of the notification issued in G.O.Ms.No.275, Social
Welfare Department, dated the 5th November 1986, as
subsequently amended in G.O. Ms. No.73, Social Welfare
Department, dated the 25th April 1988, the Governor of Andhra
Pradesh hereby directs that sections 78 and 79 of the Andhra
Pradesh Education Act, 1982 (Act 1 of 1982) and sections 169,
F 195 and 268 of the Andhra Pradesh Panchayat Raj Act, 1994
(Act 13 of 1994) and rule 4 (a) of the Andhra Pradesh School
Educational Subordinate Service Rules issued in G.O.Ms.No.538
Education (Ser. II) Department, dated the 20th November 1998
and rule 22 and 22A of the Andhra Pradesh State and Subordinate
G Service Rules, 1996 and any other rules made in this regard shall
apply to the appointment of posts of teachers in schools situated,
in the Scheduled areas in the State subject to the modification that
all the posts of teachers in the Schools situated in Scheduled Areas
in the State of Andhra Pradesh shall be filled in by the local
Scheduled Tribe candidates only out of whom 33 1/3% shall
H women.
CHEBROLU LEELA PRASAD RAO & ORS. v. 47
STATE OF A.P. & ORS. [ARUN MISHRA, J.]
EXPLANATION:- For the purpose of this notification, the ‘Local A
Scheduled Tribe Candidate’ means, the candidate belonging to
the Scheduled Tribes notified as such under article 342 of the
Constitution of India and the candidates themselves or their parents
have been continuously residing in the scheduled areas of the
Districts in which they are residents till to date since the 26th
B
January 1950.”
(emphasis supplied)
9. In the notification various provisions have been mentioned.
Section 78 of the A.P. Education Act, 1982 provides for the constitution
of educational service. It confers power upon the Governor to make C
rules to regulate the classification, methods of recruitment, conditions of
service, pay and allowances and discipline and conduct of the members
of the educational service. Section 79 inter alia deals with dismissal,
removal, reduction in rank and suspension of the employees of private
institutions. Section 169 of the A.P. Panchayat Raj Act, 1994 deals with
creation of the posts of officers and employees of the Mandal Parishad, D
the method of recruitment and conditions of service. Section 195 of the
A.P. Panchayat Raj Act, 1994, provides for creation of posts of officers
and employees of Zilla Parishad, the method of recruitment, conditions
of service, etc. Section 268 of the said Act empowers the Government
to make rules. E
10. The Andhra Pradesh State and Subordinate Service Rules,
1996 referred to in the notification were made by the State in exercise
of the power conferred under proviso to Article 309 of the Constitution
of India. Rule 22 of the Andhra Pradesh State and Subordinate Service
Rules, 1996 provides for reservation. Rule 22 is extracted hereunder: F
“Special Representation (Reservation): (1) Reservation may be
made for appointments to a service, class or category in favour of
Scheduled Castes, Scheduled Tribes, Backward Classes, Women,
Physically handicapped, Meritorious Sportsman, Ex-Servicemen
and such other categories, as may be prescribed by the Government G
from time to time, to the extent and in the manner specified
hereinafter in these rules or as the case may be, in the special
rules. The principle of reservation as hereinafter provided shall
apply all appointments to a service, class, or category.
H
48 SUPREME COURT REPORTS [2020] 6 S.C.R.
A (i) by direct recruitment, except where the Government by a
General or Special Order made in this behalf, exempt such service,
class or category;
(ii) otherwise than by direct recruitment where the special rules
lay down specifically that the principle reservation in so far as it
B relates to Scheduled Castes and Scheduled Tribes only shall apply
to such services, class, or category to the extent specified therein.
(2)(a) The unit of appointments for the purpose of this rule shall
be one hundred vacancies, of which, fifteen shall be reserved for
scheduled for Scheduled Castes, six shall be reserved for Scheduled
C Tribes, twenty-five shall be reserved for the Backward Classes
and the remaining fifty-four appointments shall be made on the
basis of open competition and subject to Rule 22-A of these rules.
(e) Appointments under this rule shall be made in the order of
rotation specified below in a unit of hundred vacancies.
D Rule 22-A: Women reservation in appointments: Notwithstanding
anything contained in these rules or special rules or Ad hoc Rules:
(1) In the matter of direct recruitment to posts for which women
are better suited than men, preference shall be given to women:
Provided that such absolute preference to women shall not result
E
in total exclusion of men in any category of posts.
(2) In the matter of direct recruitment to posts for which women
and men are equality suited, there shall be reservation to women
to an extent of 33 1/3 % of the posts in each category of Open
Competition, Backward Classes (Group-A), Backward Classes
F
(Group-B), Backward Classes (Group-C), Backward Classes
(Group-D), Scheduled Castes, Scheduled Tribes and Physically
Handicapped and Ex-Servicemen quota.
(3) In the matter of direct recruitment to posts which are reserved
exclusively for being filled by women, they shall be filled by women
G only.”
Six per cent reservation has been provided in the State for
Scheduled Tribes.
11. The A.P. Regulation of Reservation and Appointment to Public
H Services Act, 1997, was enacted to ensure that the reservation mandated
CHEBROLU LEELA PRASAD RAO & ORS. v. 49
STATE OF A.P. & ORS. [ARUN MISHRA, J.]
under Rule 22 is followed scrupulously. The Act intended to punish the A
officers for violation of the rules of reservation. The Act did not provide
any percentage of the reservation to the Scheduled Castes, Scheduled
Tribes, and the backward classes. The reservations were provided under
Rules 22 and 22A of the Rules framed under Article 309.
ARGUMENTS B
12. It was submitted by Mr. C.S.N. Mohan Rao, Mr. G.
Ramakrishna Prasad and Mr. G.V.R. Choudhary, learned counsel and
other learned counsel for the appellants that the limited legislative power
is conferred on the Governor to modify the existing legislation made by
the Parliament or the State legislature under Para 5(1) of the Fifth C
Schedule to the Constitution. The power to make regulation was conferred
under Para 5(2) of Schedule V. Under Para 5(1), there is no such
legislative power. The earlier G.O.Ms. of 1986 was quashed. After that,
the appeal preferred in this Court was withdrawn, and fresh G.O. was
issued, again perpetuating the illegality by providing a 100% reservation.
D
13. Learned counsel for the appellants argued that Article 371-D
of the Constitution contains special provisions concerning the State of
Andhra Pradesh, which has now been amended for Andhra Pradesh as
well as Telangana. After re-organisation of the States, the Article has
been amended in its application to Andhra Pradesh as well as Telangana.
Article 371D was promulgated given the geographical disparities in the E
arena of public employment in the State of Andhra Pradesh as candidates
from certain districts were capturing a disproportionately large number
of posts, as such by way of the Presidential Order issued under the said
provisions, local cadres were created for different parts of the State.
The Presidential Order provided for reservation on district/zonal basis F
for different posts. A district/zone as the case may constitute a local
area. A district is a unit for teachers, and all the posts have been ordered
to be filled by scheduled tribe candidates in the scheduled areas in several
districts.
14. Learned counsel for the appellants argued that as per the G
Presidential Order issued under Article 371D, aspiring candidates could
not apply outside the district or zone, as the case may be. Thus, the
incumbents cannot apply outside their districts where they are residing.
Their chances of obtaining public employment as against the posts of
teachers have been taken away. Thus, the G.O. transgresses the
H
50 SUPREME COURT REPORTS [2020] 6 S.C.R.
A Presidential Order issued under Article 371-D of the Constitution as
such the same is unconstitutional and could not prevail.
15. Learned counsel for the appellants further argued that providing
100% reservation is not permissible because of the catena of decisions
rendered by this Court, to be referred later. Learned counsel vehemently
B argued that it is an unfortunate reality that the law-makers are resorting
to reservations on political basis catering to vote-bank, thereby ignoring
the constitutional mandate to which they owe allegiance. The reservation
so provided is against the wishes of the founding fathers of the
Constitution. The reason employed of chronic absenteeism in the schools,
could not have been made the fulcrum justifying 100% reservation. Merit
C has been ignored and whittled down. The noble profession of teaching
cannot be demeaned. There cannot be a compromise with the standard
of education in the garb of cent percent reservation, and merit is a
casualty. It tantamounts to reverse discrimination. It cannot be said to
be a case of classification, but it is a case of reservation. It is highly
D unfair and unreasonable action. The Constitution of India does not permit
100% reservation in respect of any particular class or category to the
total exclusion of others. Reservation set out under Article 16 should not
exceed the limit of 50%.
16. The G.O. would be counter-productive to the aim of the
E Constitution in providing protective legislation, and the main thrust of the
reservation is to bring in the disadvantaged classes into the mainstream
of the society at large. The idea of the tribal students to be taught by
tribal teachers in the scheduled areas is akin to compromising with the
merit and quality of education and further put the tribal children at a
disadvantage and segregate them from the mainstream. Regarding the
F language barrier, learned counsel argued that qualifications for teachers
could be provided that they should know the local language, a resident of
a district invariably knows the local language. In the impugned notification,
no such aspect was mentioned.
17. Learned counsel on behalf of the appellants further argued
G that Rules 22 and 22A of the Andhra Pradesh State and Subordinate
Service Rules, 1996 provides for reservation framed under proviso to
Article 309 of the Constitution. The legislature did not frame them. Thus,
it could not have been amended or modified by the Governor in exercise
of the power under Para 5(1) of Schedule V to the Constitution being
H subordinate legislation. That apart, it was argued that no new law could
CHEBROLU LEELA PRASAD RAO & ORS. v. 51
STATE OF A.P. & ORS. [ARUN MISHRA, J.]
have been created within the realm of Para 5(1) of Schedule V. The A
Acts mentioned in G.O.Ms. No.3/2000 did not deal with reservation.
The Act of 1997, provided for the reservation, was not amended. Even
by amending the same, 100% reservation could not have been provided.
18. The classification created within the scheduled tribes to benefit
only the candidates or their parents continuously residing in the scheduled B
areas since 26.1.1950 is arbitrary, illegal, and discriminatory vis-à-vis
the scheduled tribes also, besides other categories. The executive order
could not have provided the reservation. The legislation was imperative
to provide for a 100% reservation. Testing the case on the anvil of the
doctrine of basic structure is not germane as it is not a case set up that
provisions under Para 5 of Schedule V are against the basic structure of C
the Constitution. The provisions of Para 5 of Schedule V are not
questioned, but only the legality of the action taken thereunder. The right
of judicial review is available in case of any action taken, which is per se
illegal, arbitrary or violative of fundamental rights and sans any basis.
19. Concerning the non-obstante clause, it was argued that the D
order under Para 5 of Schedule V could not have been issued in
contravention of Article 371D.It contravened the Presidential order.
20. Dr. Rajeev Dhawan, learned senior counsel appearing for the
respondents, argued that the Constitution has a solicitude for scheduled
castes and scheduled tribes under various provisions contained in Articles E
15 and 16 and the Directive Principles contained in Articles 37, 38, 47
and 51(A). There are special provisions carved out providing reservation
to SCs/ STs; there is National Commission for Scheduled Tribes, Article
330 provides reservation of seats for SC/ ST in House of People, Article
332 provides reservation in State Assemblies, Article 335 provides to F
consider the claim of SCs/STs to services, Article 338 provides for the
constitution of National Commission for Scheduled Castes and Article
338A provides for the constitution of National Commission for Scheduled
Tribes. Articles 339, 341, 342 and 334, are other provisions relating to
SCs/ STs. Articles 343D and 343(T)(h) provide reservation for SC/ST
in Panchayats. G
21. Learned senior counsel further argued that India’s Constitution
is symmetrical and spatial for SCs/STs. In that view, the scheduled areas
are constituted under the provisions of Article 244 and Schedules V and
VI. The Constitution creates special classification. Equality is a concept
H
52 SUPREME COURT REPORTS [2020] 6 S.C.R.
A of anti-arbitrariness. The normal rule of 50% reservation can be relaxed
in appropriate cases that have precisely been done by the Governor.
Reservation can be made by executive order. Reservations cannot be
termed to be anti-meritarian. He urged that the reservations were
provided due to discrimination, disadvantage, and to share the State power.
Elaborately referred to the decision in Indra Sawhney &Ors. v. Union
B
of India &Ors., (1992) Supp. 3 SCC 217, it was argued that reservations
could be rectified/revised. It is not permissible to sub-divide the SCs and
STs. Article 16(4) aims at group backwardness. Strictly speaking, the
constitution of a Commission to enquire is not necessary for providing
further reservations, particularly for scheduled tribes in the scheduled
C areas. The scope of judicial review is limited in such matters. He referred
to various dictums to be adverted to later.
22. Dr. Rajeev Dhawan, learned senior counsel, lastly argued that
G.O.Ms. No.3/2000 is constitutionally valid, and the Court may, if so
advised, issue directions to the States to maintain oversight. The purposes
D of Article 371D and Para 5 of Schedule V are entirely different. He
further argued that to trickle down the necessary benefits, the remedy
lies in following what is inelegantly called the “bottoms up” approach.
The malady can be addressed by empowering Gram Sabhas, ensuring
the right to information, and strengthening its implementation. Learned
senior counsel alternatively argued that in case this Court concludes that
E the G.O. is to be quashed, the appointments made should not be disturbed.
23. Shri R. Venkataramani, learned senior counsel appearing for
the State of Andhra Pradesh, argued that the scheme of Schedule V, as
a whole, deserves to be dealt with on a special constitutional footing,
that is an exclusive constitutional enclave, free in its ambit to ensure the
F promotion of the interests, concerns and the development of scheduled
areas. Paras 2 and 5 of the Fifth Schedule constitute its essence. Para 2
enacts limitations on the executive power of the State concerning the
scheduled areas. Para 5 is a composite and particular species of the
enabling power, conferring on the Governor, legislative, and administrative
G powers. The legislative and administrative powers run seamlessly. For
instance, the power under clause (1) of Para 5 to extend a Central or
State legislation to the scheduled area, “subject to exceptions and
modifications,” confer a power to amend the legislation. The power under
clauses (1) and (2) operates in distinct fields to achieve distinct purposes,
each of them wide in their way. The object to be achieved under clause
H
CHEBROLU LEELA PRASAD RAO & ORS. v. 53
STATE OF A.P. & ORS. [ARUN MISHRA, J.]
(1) is to evaluate and assess the relevance, fitness, or inappropriateness A
of any law in their application to scheduled areas, the domain of policy
with considerable latitude to bring into force with modifications and
exceptions any law.
24. Shri R. Venkataramani, learned senior counsel further argued
that the scheduled areas and the tribes constitute a special class. This B
special homogenous class can always be dealt with on a special basis.
The G.O. was not issued to favour the local scheduled tribes or to
discriminate against others intentionally. It was passed to advance the
educational interests of the scheduled areas, even if it otherwise impinges
upon the claims under Article 14 or 16(1), cannot be faulted. Even if the
G.O. advances a class interest, it cannot be subjected to scrutiny under C
Articles 14 and 16(1).
25. Shri R. Venkataramani further argued that there is no conflict
between Article 371D and Schedule V. The two operate in distinct fields
and achieve different purposes. The socio-economic experiments drafted
by the legislatures, and in this case by the Governor, cannot be subjected D
to judicial scrutiny. It is wrong to suggest that the non-obstante clause in
Article 371-D can annul the non-obstante clause in Para 5 of the Fifth
Schedule. Firstly, the two constitutional provisions operate in distinct
domains. Article 371-D was not enacted to be a superimposition on
Schedule V. Secondly, it is well settled that if the object and purpose of E
legislation or provisions with respective non-obstante clauses are distinct,
the Court would not see any conflict.
26. Shri R. Venkataramani, learned senior counsel, also argued
that Schedule V is a complete Code by itself. It is not a case of reservation
at all. It is a classification made to ensure that the schools in the scheduled F
areas function and promote the educational interest of the tribal populace.
The Governor took cognizance of the general non-availability of teachers.
The notification by prescribing that the Scheduled Tribe teachers of the
local areas should be the exclusive component of the teaching element
was looking at the local scheduled tribe teacher as the best possible tool
for ensuring the educational interest of the scheduled areas. Learned G
senior counsel has referred to various decisions, to be adverted later.
27. Learned senior counsel further pointed out that the scheduled
area is extended over 31,485 sq. km. which is about 11% of the total
area of the State with more than 5938 villages distributed in Srikakulam,
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54 SUPREME COURT REPORTS [2020] 6 S.C.R.
A Vizianagaram, Visakhapatnam, East Godavari, West Godavari, Khammam,
Warangal, Adilabad and Mahaboobnagar Districts. Scheduled Tribe
students are at a disadvantageous position. The non-attendance of
teachers was more in the scheduled areas, so to provide the facility of
teaching, classification has been made. It cannot be said to be a case of
providing reservations. The Government of Andhra Pradesh, Department
B
of Tribal Welfare, has established various categories of educational
institutions to cater to the needs of Scheduled Tribes children in the
State.
28. Learned senior counsel further submitted that the Government
of Andhra Pradesh, Department of Tribal Welfare, established various
C categories of educational institutions to cater to the needs of Scheduled
Tribes children in the State, such as GurukulaPathasalas, Ashram schools,
and residential, educational institutions, and the method of appointment
of the local tribe has yielded good results.
29. Shri B. Adinarayana Rao, learned senior counsel appearing
D for the State of Telangana, pointed out the history of scheduled areas
Ganjam and Vizagapatnam. The Act of 1839 declared agency areas of
Madras Presidency, providing for separate administration of tribals/agency
areas. In 1874, the Scheduled Districts Act, XIV was passed, which had
a schedule in which the territories were mentioned, inhabited by tribals
E as such. Rules were issued for administering the areas by the Governor
General-in-Council to the exclusion of ordinary laws. The Government
of India Act, 1919, had made “wholly excluded and partially excluded
areas for reform” and kept them under the administration of Governor
General-in-Council, with a separate application of laws. The Government
of India Act, 1935, had extended the same. Thus, historically, the
F scheduled areas were governed by special laws. They cannot be
compared with areas generally administered by the Act of legislatures.
Special provisions have been made in Schedule V. The order issued by
the Governor has to be treated as legislation. The application of laws is
one of the recognised forms of legislation. The order of Governor can
G only be tested on the parameters of competence and violation of the
Constitution. It cannot be tested on the touchstone of ideal norms. It
achieves the purpose of Article 46 of the Constitution.
30. Shri B. Adinarayana Rao, learned senior counsel, has further
argued that forests or hills separate scheduled areas from other areas.
H Notified tribes inhabit them. There are some non-tribals in the scheduled
CHEBROLU LEELA PRASAD RAO & ORS. v. 55
STATE OF A.P. & ORS. [ARUN MISHRA, J.]
areas. In spite of their stay/residence, the non-tribals cannot acquire by A
sale, purchase, lease, or otherwise, the lands in the scheduled areas and
legislations imposing such restrictions have been held to be constitutional
by this Court in various decisions. The tribal customs, culture, traditions,
and personal laws need to be protected and preserved. They speak their
dialect in their habitations. Due to inaccessibility and lack of facilities,
B
the teachers appointed in scheduled areas are not attending the schools,
leading to chronic absenteeism. The experiment has resulted in fulfilling
the desired objectives. There has been a significant increase in literacy
among tribals.
There is no repugnancy with the Presidential Order issued under
Article 371D. Article 371D(10) provides for the non-obstante clause to C
make the provisions immune from challenge under Articles 14 and 16 of
the Constitution of India. The provisions made in Para 5 of Schedule V
have to be viewed on a similar anvil.
31. Shri Shivam Singh, learned counsel appearing on behalf of
some of the respondents, argued that the basic structure doctrine is D
inapplicable, the original constitutional text must not be employed to test
the impugned action. Schedule V under Article 244(1) of the Constitution
is part of the original text. Hence, it must not be tested on the touchstone
of the basic structure violation. He argued by referring to the decisions
of this Court that the constitutional amendments post-1973 can be struck E
down if they violate the basic structure doctrine and not the original text
of the Constitution. The non-obstante clause in Para 5(1) Schedule V
continues to hold and occupy the field. The rigours of the basic structure
doctrine may hit Article 371-D but cannot affect Schedule V. Article 14
cannot be used to defeat intendment of the non-obstante clause of
Schedule V. F
32. Shri Shivam Singh, learned counsel, further argued that in
case of conflict between non-obstante clauses, as far as possible, they
must be harmoniously construed. The provision enacted later prevails
over the one enacted earlier. If the latter provision is found to be generic
as against the earlier provision, then the earlier provision has to prevail. G
33. Learned counsel has further canvassed that as the Governor
has the power to frame the regulations, the power extends to subordinate
legislation also. Subordinate legislation has to be treated as part of the
legislation itself. Regulations must be treated as part of the statute itself.
H
56 SUPREME COURT REPORTS [2020] 6 S.C.R.
A In the power to modify and create exceptions in exceptional
circumstances to provide a 100% reservation is permissible. There is
minimal scope for judicial review. The notification contemplated a
classification under Article 16(1) not a reservation under Article 16(4)
issued to provide impetus to scheduled areas in the field of education; to
B strengthen educational infrastructure, to promote the educational
development of tribals; to prevent phenomenal absenteeism of teachers
in the schools in the scheduled areas from teaching tribals. The conditions
of eligibility and cut-off date to avail the benefit of reservation are
reasonable to further strengthen the educational infrastructure
development and other problems faced in the area.
C
In Re: Question No.1: What is the scope of Para 5(1) of
Schedule V of the Constitution of India?;and Question No.1(a):
Does the provision empower the Governor to make a new law?
34. The Fifth Schedule finds reference in Article 244 of the
Constitution of India. Article 244 deals with the administration of
D
scheduled areas and tribal areas. It is provided that the provisions of
Schedule V shall apply to the administration of scheduled areas. Article
244 is extracted hereunder:
“Article 244. Administration of Scheduled Areas and Tribal
Areas.—(1) The provisions of the Fifth Schedule shall apply to
E the administration and control of the Scheduled Areas and
Scheduled Tribes in any State other than the States of Assam
Meghalaya, Tripura, and Mizoram.
(2) The provisions of the Sixth Schedule shall apply to the
administration of the tribal areas in the State of Assam, Meghalaya,
F Tripura and Mizoram.”
35. Article 244 excludes Assam, Meghalaya, Tripura, and Mizoram
from Schedule V, and they are included as per Article 244(2) in Schedule
VI. Schedule V in extenso is extracted hereunder:
G “FIFTH SCHEDULE
[Article 244(1)]
PROVISIONS AS TO THE ADMINISTRATION AND
CONTROL OF SCHEDULED AREAS AND
SCHEDULED TRIBES
H
CHEBROLU LEELA PRASAD RAO & ORS. v. 57
STATE OF A.P. & ORS. [ARUN MISHRA, J.]
PART A A
GENERAL
“1. Interpretation.—In this Schedule, unless the context
otherwise requires, the expression ‘State’ does not include the
States of Assam, Meghalaya, Tripura, and Mizoram.
B
2. Executive power of a State in Scheduled Areas.—Subject
to the provisions of this Schedule, the executive power of a State
extends to the Scheduled Areas therein.
3. Report by the Governorto the President regarding the
administration of Scheduled Areas.—The Governor of each C
State having Scheduled Areas therein shall annually, or whenever
so required by the President, make a report to the President
regarding the administration of the Scheduled Areas in that State
and the executive power of the Union shall extend to the giving of
directions to the State as to the administration of the said areas.
D
PART B
ADMINISTRATION AND CONTROL OF
SCHEDULED AREAS AND SCHEDULED TRIBES
4. Tribes Advisory Council.—(1) There shall be established in
each State having Scheduled Areas therein and, if the President E
so directs, also in any State having Scheduled Tribes but not
Scheduled Areas therein, a Tribes Advisory Council consisting of
not more than twenty members of whom, as nearly as may be,
three-fourths shall be the representatives of the Scheduled Tribes
in the Legislative Assembly of the State:
F
Provided that if the number of representatives of the
Scheduled Tribes in the Legislative Assembly of the State is less
than the number of seats in the Tribes Advisory Council to be
filled by such representatives, the remaining seats shall be filled
by other members of those tribes.
G
(2) It shall be the duty of the Tribes Advisory Council to
advise on such matters pertaining to the welfare and advancement
of the Scheduled Tribes in the State as may be referred to them
by the Governor.
H
58 SUPREME COURT REPORTS [2020] 6 S.C.R.
A (3) The Governor may make rules prescribing or regulating,
as the case may be,
(a) the number of members of the Council, the mode of their
appointment and the appointment of the Chairman of the
Council and of the officers and servants thereof;
B (b) the conduct of its meetings and its procedure in general; and
(c) all other incidental matters.
5. Law applicable to Scheduled Areas.—(1) Notwithstanding
anything in this Constitution, the Governor may by public notification
C direct that any particular Act of Parliament or of the Legislature
of the State shall not apply to a Scheduled Area or any part thereof
in the State or shall apply to a Scheduled Area or any part thereof
in the State subject to such exceptions and modifications as he
may specify in the notification and any direction given under this
sub-paragraph may be given so as to have retrospective effect.
D
(2) The Governor may make regulations for the peace and good
government of any area in a State which is for the time being a
Scheduled Area.
In particular and without prejudice to the generality of the foregoing
power, such regulations may—
E
(a) prohibit or restrict the transfer of land by or among members
of the Scheduled Tribes in such area;
(b) regulate the allotment of land to members of the Scheduled
Tribes in such area;
F (c) regulate the carrying on of business as money-lender by persons
who lend money to members of the Scheduled Tribes in such
area.
(3) In making any such regulation as is referred to in sub-
paragraph (2) of this paragraph, the Governor may repeal or amend
G any Act of Parliament or of the Legislature of the State or any
existing law which is for the time being applicable to the area in
question.
(4) All regulations made under this paragraph shall be
submitted forthwith to the President and, until assented to by him,
H shall have no effect.
CHEBROLU LEELA PRASAD RAO & ORS. v. 59
STATE OF A.P. & ORS. [ARUN MISHRA, J.]
(5) No regulation shall be made under this paragraph unless A
the Governor making the regulation has, in the case where there
is a Tribes Advisory Council for the State, consulted such Council.
PART C
SCHEDULED AREAS
B
6. Scheduled Areas.—(1) In this Constitution, the
expression ‘Scheduled Areas’ means such areas as the President
may by order declare to be Scheduled Areas.
(2) The President may at any time by order—
(a) direct that the whole or any specified part of a C
Scheduled Area shall cease to be a Scheduled Area
or a part of such an area;
(aa) increase the area of any Scheduled Area in a State
after consultation with the Governor of that State;]
D
(b) alter, but only by way of rectification of boundaries,
any Scheduled Area;
(c) on any alteration of the boundaries of a State or on
the admission into the Union or the establishment of
a new State, declare any territory not previously
included in any State to be, or to form part of, a E
Scheduled Area;
(d) rescind, in relation to any State or States, any order
or orders made under this paragraph, and in
consultation with the Governor of the State concerned,
make fresh orders redefining the areas which are to F
be Scheduled Areas,
and any such order may contain such incidental and consequential
provisions as appear to the President to be necessary and proper,
but save as aforesaid, the order made under sub-paragraph (1) of
this paragraph shall not be varied by any subsequent order. G
PART D
AMENDMENT OF THE SCHEDULE
7. Amendment of the Schedule.—(1) Parliament may from
time to time by law amend by way of addition, variation or repeal H
60 SUPREME COURT REPORTS [2020] 6 S.C.R.
A any of the provisions of this Schedule and, when the Schedule is
so amended, any reference to this Schedule in this Constitution
shall be construed as a reference to such Schedule as so amended.
(2) No such law as is mentioned in sub-paragraph (1) of
this paragraph shall be deemed to be an amendment of this
B Constitution for the purposes of article 368.”
36. The State can exercise executive power in scheduled areas.
However, the same is subject to the provisions of the Schedule. Para 3
of Schedule V provides for the continuous interplay between the Governor
and the President. The Governor has to send an Annual Report or at any
C time whenever so required by the President. The Governor is bound to
report to the President regarding the administration of the scheduled
areas, and in the exercise of executive power, the Union Government
can issue directions to State as to the administration of the scheduled
areas.
D 37. The object of para 5 of Schedule V is to establish an egalitarian
society and to ensure socio-economic empowerment to the Scheduled
Tribes as held in Samatha v. State of A.P. &Ors., (1997) 8 SCC 191
thus:
“71. Thus, the Fifth and Sixth Schedules, an integral scheme of
E the Constitution with direction, philosophy and anxiety is to protect
the tribals from exploitation and to preserve valuable endowment
of their land for their economic empowerment to elongate social
and economic democracy with liberty, equality, fraternity and
dignity of their person in our political Bharat.”
F 38. Para 4 of Schedule V to the Constitution of India provides for
the formation of Tribes Advisory Council for administration and control
of the scheduled areas and scheduled tribes. Para 4(2) enables the
Advisory Council to advise on such matters pertaining to the welfare
and advancement of the scheduled tribes in the State as may be referred
to them by the Governor. The Governor has the power to make rules,
G regulations as to the number of members of the Tribes Advisory Council,
the mode of their appointment, conduct of meetings, and other incidental
matters.
39. Para 5 of Schedule V deals with the law applicable to the
scheduled areas. It containsa non-obstante clause and authorises the
H Governor to issue a notification to the effect that any particular Act of
CHEBROLU LEELA PRASAD RAO & ORS. v. 61
STATE OF A.P. & ORS. [ARUN MISHRA, J.]
the Parliament or of the State Legislature shall not apply to a scheduled A
area or any part thereof. It also empowers the Governor to create
exceptions and modifications as he may specify in the notification
concerning the applicability of such Act of Parliament or legislature of
the State. The Governor is empowered to issue notification giving it
retrospective effect. It is apparent that the law contained in the Act can
B
be modified by the Governor or can be excluded in its application from
the scheduled area or any part of it. Thereupon such Act, hence, of the
Parliament or the State Legislature can be applied with exceptions and
modifications to the scheduled area. Para 5(1) confers power upon the
Governor not concerning the only exclusion of Act of Parliament or the
State but to modify or create exceptions. C
(a) Para 5(1) of Schedule V does not confer upon Governor power
to enact a law but to direct that a particular Act of Parliament or the
State Legislature shall not apply to a scheduled area or any part thereof
or shall apply with exceptions and modifications, as may be specified in
the notification. The Governor is not authorised to enact a new Act D
under the provisions contained in para 5(1) of Schedule V of the
Constitution. Area reserved for the Governor under the provisions of
para 5(1) is prescribed. He cannot act beyond its purview and has to
exercise power within the four corners of the provisions.
(b) Para 5(2) of Schedule V deals with the power of the Governor E
to make regulations for the peace and good government in a scheduled
area of a State. The Governor has to obtain the advice of the Tribes
Advisory Council in the matters pertaining to Para 5(2), if it has been
constituted. The Governor is expressly authorised to prohibit or restrict
the transfer of land by any member of scheduled tribes and also regulate
the allotment of land to the members of the Scheduled Tribes in the F
Scheduled Areas. Para 5(3) provides that while making any such
regulations as mentioned in Para 5(2), the Governor has the power to
repeal or amend any Act of Parliament or the legislature of the State or
any existing law which is for the time being applicable to the area in
question, but that is for peace and good governance of the scheduled G
area. The regulation made by the Governor to be effective is required to
be assented by the President. Prior assent of the President is mandatory
for regulation to be put into effect. There is a further rider on the
regulatory power of the Governor provided by Para 5(5). In case Tribes
Advisory Council has been constituted before making any regulation,
H
62 SUPREME COURT REPORTS [2020] 6 S.C.R.
A the Governor is duty-bound to consult such Council. No regulation can
be made without consultation with the Council in case it has been formed.
40. The Act of Parliament or the appropriate legislature applies to
the scheduled areas. The Governor has the power to exclude their
operation by a notification. In the absence thereof, the Acts of the
B legislature shall extend to such areas. In Jatindra v. Province of Bihar,
(1949) FLJ 225, it was held that the power of the Governor under para
5 is a legislative power and Governor is empowered to change or modify
the provisions of the Act or the section as he deems fit by way of issuing
a notification. The power under para 5(1) is limited to the application of
the Governor’s decision to apply an Act or making modification or creating
C exceptions. Though the power is legislative to some extent, that is confined
to applicability, modification, or creating exceptions concerning the Act
of the Parliament or the State. While para 5(2) confers the power of
independent legislation, the Governor has plenary power of framing
regulations for the peace and good governance of a scheduled area. He
D is the repository of faith to decide as to the necessity. The Governor is
empowered by para 5(3) to repeal or amend any Act of Parliament or
State Legislature,following the procedure prescribed therein, in exercise
of making regulations as provided under para 5(2) of Schedule V. The
aspect of power was considered in Ram Kirpal Bhagat and Ors. v.
The State of Bihar, (1969) 3 SCC 471 thus:
E
“21. The second question which falls for consideration is whether
the Bihar Regulation I of 1951 is in excess of the Governor’s
powers. The contentions were: first, that the Regulation I of 1951
could not at all have been made; secondly, that Regulations deal
with the subject-matter and did not mean power to apply law and
F thirdly, the power to extend a law passed by another legislature
was said to be not a legislative function, but was a conditional
legislature. The legislation, in the present case, is in relation to
what is described as Scheduled Areas. The Scheduled Areas are
dealt with by Article 244 of the Constitution and the Fifth Schedule
G to the Constitution. Prior to the Constitution, the excluded areas
were dealt with by Sections 91 and 92 of the Government of India
Act, 1935. The excluded and the partially excluded areas were
areas so declared by order in Council under Section 91 and under
Section 92. No act of the Federal Legislature or of the Provincial
Legislature was to apply to an excluded or a partially excluded
H
CHEBROLU LEELA PRASAD RAO & ORS. v. 63
STATE OF A.P. & ORS. [ARUN MISHRA, J.]
area unless the Governor by public notification so directed. Sub- A
section (2) of Section 92 of the Government of India Act, 1935
conferred power on the Governor to make regulations for the
peace and good government of any area in a Province which was
an excluded or a partially excluded area and any regulations so
made might repeal or amend any Act of the Federal Legislature
B
or the Provincial Legislature or any existing Indian law which
was for the time being applicable to the area in question. The
extent of the legislative power of the Governor under Section 92
of the Government of India Act, 1935 in making regulations for
the peace and good government of any area conferred on the
Governor in the words of Lord Halsbury “an utmost discretion of C
enactment for the attainment of the objects pointed to.” (See Riel
v. Queen, LR 10 AC 657 at 658)). In that case the words which
fell for consideration by the Judicial Committee were “the power
of the Parliament of Canada to make provisions for the
administration, peace, order and good government of any territory
D
not for the time being included in any province”. It was contended
that if any legislation differed from the provisions which in England
had been made for the administration, peace, order and good
government then the same could not be sustained as valid. That
contention was not accepted. These words were held to embrace
the widest power to legislate for the peace and good government E
for the area in question.
22. The Fifth Schedule to the Constitution consists of 7 paras and
consists of Parts A, B, C and D. Para 6 in Part C deals with
Scheduled Areas as the President may by order declare and there
is no dispute in the present case that the Santhal Parganas falls F
within the Scheduled Areas. Para 5 in the Fifth Schedule deals
with laws applicable to Scheduled Areas. Sub-para 2 of para 5
enacts that the Governor may make regulations for the peace and
good government of any area in a State which is for the time
being a Scheduled Area. Under sub-para 3 of para 5, the Governor
may repeal or amend any Act of Parliament or of the legislature G
of the State or any existing law which is for the time being
applicable to the area in question. It may be stated that a contention
was advanced by counsel for the appellants that Section 92 of the
Government of India Act, 1935 was still in operation and the
Governor could only act under that section. This contention is H
64 SUPREME COURT REPORTS [2020] 6 S.C.R.
A utterly devoid of any substance because Section 92 of the
Government of India Act, 1935 ceased to exist after repeal of the
Government of India Act, 1935 by Article 395 of the Constitution.
It was contended that the power to make regulations did not confer
power on the Governor to apply any law. It was said that under
Section 92 of the Government of India Act, 1935 the Governor
B
could do so but under the Fifth Schedule of the Constitution the
Governor is not competent to apply laws. This argument is without
any merit for the simple reason that the power to make regulations
embraces the utmost power to make laws and to apply laws.
Applying law to an area is making regulations which are laws.
C Further the power to apply laws is inherent when there is a power
to repeal or amend any Act, or any existing law applicable to the
area in question. The power to apply laws is really to bring into
legal effect sections of an Act as if the same Act had been enacted
in its entirety. Application of laws is one of the recognised forms
of legislation. Law can be made by referring to a statute or by
D
citing a statute or by incorporating a statute or provisions or parts
thereof in a piece of legislation as the law which shall apply.
23. It was said by Counsel for the appellants that the power to
apply laws under the Fifth Schedule was synonymous with
conditional legislation. In the present case, it cannot be said that
E the Bihar Regulation I of 1951 is either a piece of delegated
legislation or a conditional legislation. The Governor had full power
to make regulations which are laws and just as Parliament can
enact that a piece of legislation will apply to a particular State,
similarly, the Governor under para 5 of the Fifth Schedule can
F apply specified laws to a Scheduled area. The Bihar Regulation I
of 1951 is an instance of a valid piece of legislation emanating
from the legislative authority in its plenitude of power and there is
no aspect of delegated or conditional legislation.”
(emphasis supplied)
G 41. In Hota Venkata Surya Sivarama Sastry and Anr. v. State
of Andhra Pradesh, (1962) 2 SCR 535: AIR 1967 SC 71, the question
came up for consideration as to the power to apply the laws under para
5(2). This Court opined that the power to repeal or amend is legislative,
and the regulations made in exercise of this power, cannot be said to be
H delegated or conditional legislation. This Court held:
CHEBROLU LEELA PRASAD RAO & ORS. v. 65
STATE OF A.P. & ORS. [ARUN MISHRA, J.]
“(11) It was next contended that Regulation IV of 1951 was invalid A
as having outstepped the limits of the legislation permitted by Paras
5(1) and (2) of the Fifth Schedule to the Constitution. It was said
that if the Governor desired to enact a law with retrospective
effect it must be a law fashioned by himself, but that if he applied
to the Scheduled areas a law already in force in the State, he
B
could not do so with retrospective effect. Reduced to simple terms,
the contention merely amounts to this that the Governor should
have repeated in this Regulation the terms of the Abolition Act
but that if he referred merely to the title of the Act he could not
give retrospective effect to its provisions over the area to which it
was being applied. It is obvious that this contention was correctly C
negatived by the High Court.”
42. Reliance has been placed on the decision in Edwingson Bareh
v. State of Assam and Ors., (1966) 2 SCR 770 in which the validity of
the notification issued on 23.11.1964 was in question. By the notification,
the Governor of Assam was pleased to create a new Autonomous District D
to be called the Jowai District by excluding the Jowai Sub-Division of
the United Khasi-Jaintia Hills District with effect from 1.12.1964 and
altered the boundaries. The notification was issued by the Governor in
the exercise of powers conferred on him by paragraph 1(3) of the Sixth
Schedule. This Court observed:
E
“It cannot, however, be disputed that as a result of the modification
made by the impugned notification, paragraph 20(2) has to be
changed. Paragraph 20(2), as it originally stood, describes in detail
the territories comprised in the United Khasi-Jaintia Hills District,
and as a result of the impugned notification, the said description
will have to be modified, because the said District has now been F
split up into two Autonomous District. That, however, is a change
consequent upon the change made by the Governor by issuing the
impugned notification in exercise of the powers conferred on him
by para 1(3). In our opinion, where the Governor makes changes
by virtue of the powers conferred on him by para. 1(3) (c), (d), G
(e), (f) and (g), what follows is a change in the internal composition
of the different items in Part A of the table. The exercise of the
said powers does not change, and in the present case it has not
changed, the total area comprised in Part A. What it purports to
do is to change one item into two items of Autonomous Districts.
H
66 SUPREME COURT REPORTS [2020] 6 S.C.R.
A Since the power to bring about this change is expressly conferred
on the Governor by paragraph 1(3)(c), (d), (e), (f) and (g), it is not
unreasonable to hold that the exercise of the said power should,
as in the present case, lead to a consequential change in para
20(2). Such a change in para 20(2) is a logical corollary of the
exercise of the power conferred on the Governor by para 1(3)(c),
B
(d), (e), (f) and (g).”
43. In Samatha v. State of A.P. &Ors., (1997) 8 SCC 191, this
Court held that the executive power under Article 298 and legislative
power under Article 245 to dispose of Government property are subject
to Para 5 of Schedule V. The relevant portion is extracted hereunder:
C
“85. It is true, as contended by Shri Choudhary, that the Constitution
has demarcated legislative, executive and judicial powers and
entrusted them to the three wings of the State; in particular the
President/Governor of the State is to exercise the executive power
in their individual discretion. It is not subject to legislative limitations
D to be done in accordance with rules of business. In particular, the
President/Governor is entrusted with the executive power
coextensive with the legislative power enumerated in the Seventh
Schedule read with Article 245 of the Constitution. The executive
power especially conferred by the Constitution like the pleasure
E tenure or the power of pardoning a convict are in our view, not
apposite to the issue. The power of the executive Government in
that behalf has wisely been devised in the Constitution and is not
subject to any restriction except in accordance with the
Constitution and the law made under Article 245 read with the
relevant entry in the Seventh Schedule to the Constitution subject
F to the Fifth Schedule when it is applied to Scheduled Area. The
power of the Government to acquire, hold and dispose of the
property and the making of contracts for any purpose conferred
by Article 298 of the Constitution equally is coextensive with the
legislative power of the Union/State. However, Article 244(1) itself
G specifies that provisions of the Fifth Schedule shall apply to the
administration and control of the Scheduled Areas and Scheduled
Tribes in any State except the excluded areas specified therein.
The legislative power in clause (1) of Article 245 equally is “subject
to the provisions of the Constitution” i.e. Fifth Schedule. Clause
(1) of para 5 of Part B of the Fifth Schedule applicable to Scheduled
H
CHEBROLU LEELA PRASAD RAO & ORS. v. 67
STATE OF A.P. & ORS. [ARUN MISHRA, J.]
Areas, adumbrates with a non obstante clause that: A
“Notwithstanding anything in the Constitution, in other words,
despite the power, under Article 298, the Governor may, by public
notification direct that any particular Act of Parliament or of the
legislature of a State shall not apply to a Scheduled Area or any
part thereof in the State or shall apply to a Scheduled Area or any
B
part thereof in the State, subject to such exceptions and
modifications as he may specify in the notification and any direction
given under clause (1) of para 5, may be given so as to have
retrospective effect.” The executive power of the State is,
therefore, subject to the legislative power under clause 5(1) of
the Fifth Schedule. Similarly, sub-para (2) thereof empowers the C
Governor to make Regulations for the peace and good government
of any area in a State which is for the time being a Scheduled
Area. In particular and without prejudice to the generality of the
foregoing power, such Regulations may regulate the allotment of
land to members of the Scheduled Tribes in such area or may
D
prohibit or restrict the transfer of land under clause (a) by or
among the members of the Scheduled Tribes in such areas. In
other words sub-para 5(2) combines both legislative as well as
executive power, clause 5(2)(a) and (c) legislative power and
clause (b) combines both legislative as well as executive power.
The word “regulation” in para 5(2)(b) is thus of wide import.” E
(emphasis supplied)
In Samatha (supra), it was held that mining leases could not have
been granted to non-tribals in the Scheduled Areas even concerning
land belonging to the Government. This Court in the aforesaid decision
dealt with the prohibition on the transfer of immovable property situated F
in Agency tracts by a person, whether or not such person is a member
of Scheduled Tribes or a society composed solely of the members of the
Scheduled Tribes or by a person including inter alia State Government
or State Corporations. Transfer of Government land in Agency tracts by
granting mining lease in favour of non-tribal persons was null and void. G
In the said case, the tribals were granted patta in their favour for
cultivation purposes, the said aspect made the entire difference, and the
prohibition on lease came in the way of non-tribal, which was upheld by
this Court. The decision is to operate in a different area. This Court
upheld a similar restriction in Rajasthan Housing Board v. New Pink
City Nirman Sahkari Samiti Ltd. and Anr., (2015) 7 SCC 601. H
68 SUPREME COURT REPORTS [2020] 6 S.C.R.
A 44. There is no dispute with the abovesaid proposition concerning
the protection of the transfer of land. Such provisions have been carved
out, and they have been held to be constitutionally valid. More or less,
similar provisions exist virtually in all the States. In various States,
transactions that took place relating to land of Scheduled Tribes were
statutorily annulled including decree or order of the court, and such
B
transactions have been declared to be void with retrospective effect and
validity of the same was upheld by this Court. But the question here is
not of the protection of the land. The idea behind protection of land is to
protect tribals, as they are isolated, and in disadvantageous position socially
as compared to non-tribals. Thus, protection has been conferred.
C 45. In re Art. 143 of the Constitution of India and Delhi Laws Act
(1912) etc., AIR 1951 SC 332, the Court considered the word ‘modify’
to mean alteration without radical transformation in the context in which
modification was used,it did not involve any material alteration or
substantial alteration. However, in the context of Article 370(1) of the
D Constitution of India in Puranlal Lakhanpal v. President of India
&Ors., AIR 1961 SC 1519, the power is given to the President to efface
effect of any provision of law altogether in its application to the State of
Jammu & Kashmir. The Court observed thatpower to modify should be
considered in its widest possible amplitude. This Court further considered
the word ‘modify’ in the Oxford English Dictionary, Vol. VI, to mean
E inter alia “to make partial changes in”; to change (as object) in respect
of some of its qualities; to alter or vary without radical transformation”.
Similar is the word ‘modification,’ which means the action of making
changes in an object without altering essential nature. The Court also
observed that modify just means to alter or vary, extend, or enlarge thus:
F “(4) But even assuming that the introduction of indirect election
by this modification is a radical alteration of the provisions of Art.
81(1), the question still remains whether such a modification is
justified by the word “modification” as used in Art. 370(1). We
are here dealing with the provision of a Constitution which cannot
G be interpreted in any narrow or pedantic sense. The question that
came for consideration in In re Delhi Laws Act case,1951 SCR
747: (AIR 1951 SC 332), was with respect to the power of
delegation to a subordinate authority in making subordinate
legislation. It was in that context that the observations were made
that the intention of the law there under consideration when it
H
CHEBROLU LEELA PRASAD RAO & ORS. v. 69
STATE OF A.P. & ORS. [ARUN MISHRA, J.]
used the word “modification” was that the Central Government A
would extend certain laws to Part C States without any radical
alteration in them. But in the present case we have to find out the
meaning of the word “modification” used in Art. 370(1) in the
context of the Constitution. As we have said already the object
behind enacting Art. 370(1) was to recognise the special position
B
of the State of Jammu and Kashmir and to provide for that special
position by giving power to the President to apply the provisions
of the Constitution to that State with such exceptions and
modifications as the President might by order specify. We have
already pointed out that the power to make exceptions implies
that the President can provide that a particular provision of the C
Constitution would not apply to that State. If therefore the power
is given to the President to efface in effect any provision of the
Constitution altogether in its application to the State of Jammu
and Kashmir, it seems that when he is also given the power to
make modifications that power should be considered in its widest
D
possible amplitude. If he could efface a particular provision of the
Constitution altogether in its application to the State of Jammu
and Kashmir, we see no reason to think that the Constitution did
not intend that he should have the power to amend a particular
provision in its application to the State of Jammu and Kashmir. It
seems to us that when the Constitution used the word E
“modification” in Art. 370(1) the intention was that the President
would have the power to amend the provisions of the Constitution
if he so thought fit in their application to the State of Jammu and
Kashmir. In the Oxford English Dictionary (Vol. VI) the word
“modify” means inter alia “to make partial changes in; to change
F
(as object) in respect of some of its qualities; to alter or vary
without radical transformation”. Similarly the word “modification”
means “the action of making changes in an object without altering
its essential nature or character; the state of being thus changed;
partial alteration”. Stress is being placed on the meaning “to alter
or vary without radical transformation” on behalf of the petitioner; G
but that is not the only meaning of the words “modify” or
“modification”. The word “modify” also means “to make partial
changes in” and “modification” means “partial alteration”. If
therefore the President changed the method of direct election to
indirect election he was in essence making a partial change or
H
70 SUPREME COURT REPORTS [2020] 6 S.C.R.
A partial alteration in Art. 81 and therefore the modification made in
the present case would be even within the dictionary meaning of
that word. But, in law, the word “modify” has even a wider
meaning. In “Words and Phrases” by Roland Burrows, the primary
meaning of the word “modify” is given as “to limit” or “restrict”
but it also means “to vary” and may even mean to “extend” or
B
“enlarge”. Thus in law the word “modify” may just mean “vary”
i.e. amend; and when Art. 370(1) says that the President may
apply the provisions of the Constitution to the State of Jammu and
Kashmir with such modifications as he may by order specify it
means that he may vary (i.e. amend) the provisions of the
C Constitution in its application to the State of Jammu and Kashmir.
We are therefore of opinion that in the context of the Constitution
we must give the widest effect to the meaning of the word
“modification” used in Art. 370(1) and in that sense it includes an
amendment. There is no reason to limit the word “modifications”
as used in Art. 370(1) only to such modifications as do not make
D
any “radical transformation”. We are therefore of opinion that
the President had the power to make the modification which he
did in Art. 81 of the Constitution. The petition therefore fails and
is hereby dismissed with costs.”
The Governor is conferred the power to modify or create
E exceptions, is not in dispute. The power is wide but is confined to the
Acts of the Parliament or the State legislature. The power of the Governor
is not only extensive but also sui generis, and as the court has to defer
to legislative wisdom in areas of social and economic experimentation, it
also defers to the wisdom of the Governor in the exercise of his power
F under Para 5 of the Fifth Schedule.
46. In Bombay Dyeing & Mfg. Co. Ltd. (3) v. Bombay
Environmental Action Group & Ors., (2006) 3 SCC 434, the Court
referred to the decision in Puranlal Lakhanpal (supra) and observed:
“243. Yet again in Puranlal Lakhanpal v. President of India, (1962)
G 1 SCR 688, it was stated: (SCR p. 693)
“[T]he word ‘modification’ means ‘the action of making
changes in an object without altering its essential nature or
character …’.”
H
CHEBROLU LEELA PRASAD RAO & ORS. v. 71
STATE OF A.P. & ORS. [ARUN MISHRA, J.]
47. In Puranlal (supra), the Court observed that modification in A
Article 370(1) must be given the widest effect in the context of the
Constitution, and in that sense, it cannot include such limitations as do
not make any radical transformation. In S.K. Gupta & Anr. v. K.P. Jain
&Anr., (1979) 3 SCC 54, the term “modification” came up for
consideration. The Court held that it would include the making of additions
and omissions. In the context of Section 392, “modification” would mean B
addition to the scheme of compromise and/or arrangement or omission
therefrom solely to make it workable. The court observed thus:
“26. According to the definition, “modify” and “modification” would
include the making of additions and omissions. In the context of
Section 392, “modification” would mean addition to the scheme C
of compromise and/ or arrangement or omission therefrom solely
for the purpose of making it workable. Reading Section 392 by
substituting the definition of the word “modification” in its place,
if something can be omitted or something can be added to a scheme
of compromise by the Court on its own motion or on the application
D
of a person interested in the affairs of the company for the proper
working of the compromise and/or arrangement, we see no
justification for cutting down its meaning by a process of
interpretation and thereby whittle down the power of the Court to
deal with the scheme of a compromise and/or arrangement for
the purpose of making it workable in course of its continued E
supervision as ordained by Section 392(1).”
48. Para 5(1) of Schedule V to the Constitution confers power
upon the Governor to exclude law, which is applicable in a scheduled
area. It also empowers the Governor to apply the same with exceptions
and modifications as he deems fit. However, the power to exclude an F
area from applicability, modification, and to create exceptions in the law,
which was applicable in the area, cannot be said to be at par to the
regulation-making power conferred under para 5(2) of the said Rules.
Meaning of the expressions ‘exception’ and ‘modification’ is as follows:
“exception • n. a person or thing that is excepted or that
G
does not follow a rule. Ø the action or state of excepting or being
excepted.”
“modification • n. the action of modifying. Ø a change
made.”
(Source: Concise Oxford English Dictionary, 10thEdn. Revised) H
72 SUPREME COURT REPORTS [2020] 6 S.C.R.
A 49. The exceptions and modifications are created by the law, which
is already applicable in the area. It is not the formulation of a new law
which is contemplated under Para 5(1) of Schedule V. No new law can
be formulated while exercising power under Para 5(1) of Schedule V.
The power of modification cannot extend to re-writing the entire statute.
The power cannot be used to supplant the law, which is applicable. The
B
law has to be applied only with exceptions or modifications. It cannot
totally supersede the existing law, which is wholly opposed to the idea of
applicable law as in that case it would tantamount to the new law and
not the modification or exception or creation of exceptions or modifications
to the applicable law. The object and substance of law applicable cannot
C be changed within the purview of Para 5(1), though the applicability of
applicable law can be excluded. In case the Governor decides the law to
remain applicable, he has the power only to create exceptions and to
modify the same, not to create a new one juxtaposed to the same
applicable law.
D 50. The A.P. Regulation of Reservation and Appointment to Public
Services Act, 1997, deals with reservation in the State in the field of
public services. G.O. Ms. No.3 of 2000 did not amend the said Act. The
provisions of the other Acts mentioned in the notification did not deal
with the extent of reservation. Sections 78 and 79 of the A.P. Education
Act, 1982 and Sections 169, 195, and 268 of the A.P. Panchayati Raj
E Act, 1994, are not related to reservation. The rules were framed under
the proviso to Article 309. They were not framed under the main provision
by the legislature. The Governor in the exercise of power under Para
5(1) of Schedule V could have amended the Public Services Act, 1997,
or direct it not to apply to Scheduled Areas. The creation of 100 per cent
F reservation had the effect of making a new law under Para 5(1) without
reference to the Act of State or Central legislation. Independently of
that power could not be exercised within the purview of Para 5(1) of
Schedule V to the Constitution of India. Even otherwise, even if the Act
of 1997 would have been modified by the Governor, 100% reservation
could not have been provided.
G
51. We are of the opinion that the Governor’s power to make
new law is not available in view of the clear language of Para 5(1), Fifth
Schedule does not recognise or confer such power, but only power is not
to apply the law or to apply it with exceptions or modifications. Thus,
notification is ultra vires to Para 5(1) of Schedule V of the Constitution.
H
CHEBROLU LEELA PRASAD RAO & ORS. v. 73
STATE OF A.P. & ORS. [ARUN MISHRA, J.]
In Re: Question No.1(b): Does the power extend to A
subordinate legislation?
52. G.O. Ms. No.3/2000 refers to various provisions and Sections
78 and 79 of the A.P. Education Act, 1982. There is also reference to
sections 169, 195, and 268 of the A.P. Panchayat Raj Act, 1994. None
of the aforesaid provisions deals with reservation of posts. The third B
reference is about the A.P. State and Subordinate Service Rules, 1996,
which were framed in exercise of the powers conferred by the proviso
of Article 309 of the Constitution of India. Rule 22 of A.P. State and
Subordinate Services Rules, 1996, deals with reservation. The rules have
been framed under proviso to Article 309 of the Constitution.
C
53. The Andhra Pradesh Regulation of Reservation and
Appointment to Public Services Act, 1997, was enacted to provide
reservations. It mandatesto ensure that reservation provided under Rule
22 is followed scrupulously, and the provisions made in the rules are not
violated. In the A.P. Regulation of Reservation and Appointment Act,
the percentage of reservation has not been provided to respective D
Scheduled Castes, Scheduled Tribes and Backward classes.
54. Rules 22 and 22A, which provide for reservation for Scheduled
Castes, Scheduled Tribes, backward classes and women have been
framed under the proviso to Article 309 of the Constitution of India.
They are not to partake with an Act of Parliament or State legislature. E
In substance, Rules 22 and 22A framed under Article 309 have
been amended, which could not have been done as that is not the Act of
the Parliament or the legislature of the State. Thus, the Governor could
not have exercised power concerning rule framed under the proviso to
Article 309 of the Constitution. F
55. In B.S. Yadav & Ors. v. State of Haryana &Ors., AIR 1981
SC 561, this Court held that the rule made by the Governor under the
proviso is also the law but, at the same time, it cannot be said in view of
the aforesaid decision that the Parliament or the State legislature made
the rules under the proviso to Article 309 of the Constitution. G
56. Learned counsel on behalf of the State argued that Para 5(1)
of Schedule V empowers the Governor to make laws, and it is a legislative
function, and any order of the Governor shall be treated as legislation.
The impugned order shall have to be treated as legislation and can only
be tested on the parameters of competence and violation of the H
74 SUPREME COURT REPORTS [2020] 6 S.C.R.
A Constitution. It cannot be tested on the touchstone of ideal norms. Reliance
has been placed on Natural Resources Allocation, In re, Special
Reference No.1 of 2012, (2012) 10 SCC 1 in which the Court opined:
“112. Equality, therefore, cannot be limited to mean only auction,
without testing it in every scenario. InState of W.B. v. Anwar Ali
B Sarkar, AIR 1952 SC 75, this Court, quoting from Kotch v. River
Port Pilot Commissioners, 91 L Ed 1093: 330 US 552 (1947) had
held that: (Anwar Ali Sarkar case, AIR 1952 SC 75, AIR p. 80,
para 10)
“10. … ‘The constitutional command for a State to afford
C equal protection of the laws sets a goal not attainable by the
invention and application of a precise formula. This Court has
never attempted that impossible task.’”
One cannot test the validity of a law with reference to the essential
elements of ideal democracy, actually incorporated in the
D Constitution. (See Indira Nehru Gandhi v. Raj Narain, 1975
Supp SCC 1) The courts are not at liberty to declare a statute
void, because in their opinion, it is opposed to the spirit of the
Constitution. The courts cannot declare a limitation or constitutional
requirement under the notion of having discovered some ideal
norm. Further, a constitutional principle must not be limited to a
E precise formula but ought to be an abstract principle applied to
precise situations. The repercussion of holding auction as a
constitutional mandate would be the voiding of every action that
deviates from it, including social endeavours, welfare schemes
and promotional policies, even though CPIL itself has argued
F against the same, and asked for making auction mandatory only
in the alienation of scarce natural resources meant for private
and commercial business ventures. It would be odd to derive
auction as a constitutional principle only for a limited set of
situations from the wide and generic declaration of Article 14.
The strength of constitutional adjudication lies in case to case
G adjudication and therefore auction cannot be elevated to a
constitutional mandate.”
The submission that the order of the Governor shall be treated as
legislation and has to be tested like legislation cannot be disputed.
However, when it comes to modification or exception, concerning the
H
CHEBROLU LEELA PRASAD RAO & ORS. v. 75
STATE OF A.P. & ORS. [ARUN MISHRA, J.]
Act of Parliament or the State legislature, we cannot add subordinate A
legislation in the ken of Para 5(1). The Governor can make a decision
not to apply Parliamentary law or State law to scheduled areas and
modify such law.
57. The rules framed under the proviso to Article 309 of the
Constitution cannot be said to be the Act of Parliament or State legislature. B
Though the rules have the statutory force, they cannot be said to have
been framed under any Act of Parliament or State legislature. The rules
remain in force till such time the legislature exercises power. The power
of the Governor under Para 5(1) of Schedule V of the Constitution is
restricted to modifying or not to apply, Acts of theParliament or legislature
of the State. Thus, the rules could not have been amended in the exercise C
of the powers conferred under Para 5(1) of Schedule V. The rules made
under proviso to Article 309 of the Constitution cannot be said to be an
enactment by the State legislature. Thus, in our opinion, it was not open
to the Governor to issue the impugned G.O. No.3/2000.
In re: Question No.1(c): Can the exercise of the power D
conferred in Para 5 of the Fifth Schedule override fundamental
rights guaranteed under Part III?
58. Manifold arguments are made in this regard. Firstly, it was
argued on behalf of the respondents that the basic structure doctrine is
inapplicable upon the Constitution’s original text. It must not be employed E
to test the validity of the impugned action. The fifth Schedule under
Article 244(1) of the Constitution is part of the original text, and hence,
it must not be tested under the Basic Structure Doctrine. Reliance has
been placed on Kesavananda Bharti v. State of Kerala, (1973)4 SCC
225 in which this Court laid down that Constitutional amendments post- F
1973 can be struck down if they violate the Basic Structure Doctrine.
59. Reliance has also been placed on Waman Rao and Ors. v.
Union of India and Ors., (1981) 2 SCC 362, in which this Court opined
thus:
“49. We propose to draw a line, treating the decision in G
Kesvananda Bharati, (1973) 4 SCC 225, as the landmark. Several
Acts were put in the Ninth Schedule prior to that decision on the
supposition that the power of Parliament to amend the Constitution
was wide and untrammelled. The theory that the Parliament cannot
exercise its amending power to damage or destroy the basic
H
76 SUPREME COURT REPORTS [2020] 6 S.C.R.
A structure of the Constitution was propounded and accepted for
the first time in Kesavananda Bharati, (1973) 4 SCC 225, is one
reason for upholding the laws incorporated into the Ninth Schedule
before April 24, 1973, on which date the judgment in Kesavananda
Bharati, (1973) 4 SCC 225, was rendered. A large number of
properties must have changed hands, and several new titles must
B
have come into existence on the faith and belief that the laws
included in the Ninth Schedule were not open to challenge on the
ground that they were violative of Articles 14, 19 and 31. We
would not be justified in upsetting settled claims and titles and in
introducing chaos and confusion into the lawful affairs of a fairly
C orderly society.
50. The second reason for drawing a line at a convenient and
relevant point of time is that the first 66 items in the Ninth Schedule,
which were inserted prior to the decision in Kesavananda
Bharati, (1973) 4 SCC 225, mostly pertain to laws of agrarian
D reforms. There are a few exceptions amongst those 66 items, like
Items 17, 18, 19, which relate to Insurance, Railways and Industries.
But almost all other items would fall within the purview of Article
31-A(1)(a). In fact, Items 65 and 66, which were inserted by the
29th Amendment, are the Kerala Land Reforms (Amendment)
Acts of 1969 and 1971 respectively, which were specifically
E challenged in Kesavananda Bharati, (1973) 4 SCC 225. That
challenge was repelled.
51. Thus, insofar as the validity of Article 31-B read with the
Ninth Schedule is concerned, we hold that all Acts and Regulations
included in the Ninth Schedule prior to April 24, 1973 will receive
F the full protection of Article 31-B. Those laws and regulations
will not be open to challenge on the ground that they are inconsistent
with or take away or abridge any of the rights conferred by any
of the provisions of Part III of the Constitution. Acts and
Regulations, which are or will be included in the Ninth Schedule
G on or after April 24, 1973 will not receive the protection of Article
31-B for the plain reason that in the face of the judgment in
Kesavananda Bharati, (1973) 4 SCC 225, there was no
justification for making additions to the Ninth Schedule with a
view to conferring a blanket protection on the laws included therein.
The various constitutional amendments, by which additions were
H
CHEBROLU LEELA PRASAD RAO & ORS. v. 77
STATE OF A.P. & ORS. [ARUN MISHRA, J.]
made to the Ninth Schedule on or after April 24, 1973, will be A
valid only if they do not damage or destroy the basic structure of
the Constitution.”
(emphasis supplied)
60. Reliance has also been placed on the decision of this Court in
I.R. Coelho (Dead) by LRs. v. State of T.N., (2007) 2 SCC 1, decided B
by a nine-Judge Bench of this Court thus:
“151. The effect of the application of the limitation of the basic
structure to a scheduled Act is that Article 31-B read with the
Ninth Schedule is no longer not subject to judicial review. Judicial
review is, therefore, very much present.” C
Thus, it was urged that since the original text of the Constitution is
contained in the Fifth Schedule, it would not be permissible to test the
same in terms of the basic structure. Article 14is the part of the basic
structure; therefore, it cannot be used to dilute the non-obstante clause
of Para 5(1) of Fifth Schedule, and action taken thereunder cannot be D
tested on the anvil of violation of fundamental rights.
61. In our opinion, the submission based on Basic Structure
Doctrine is not at all germane to the instant case to decide the validity of
the provisions contained in Para 5 of Fifth Schedule of the Constitution
or validity of any other Constitutional amendment. We are deciding the E
validity of the action of the Governor issuing impugned notification,
providing 100 per cent reservation to Scheduled Tribes in the Scheduled
Areas. Every action of the legislature, whether it is Parliament or State,
has to conform with the rights guaranteed in Part III of the Constitution.
The original scheme of the Constitution itself so provides; thus, the F
argument based upon Basic Structure Doctrine does not hold the validity
of the notification as that action is taken under the provisions, and the
provisions in Para 5 Schedule V do not override the rights guaranteed in
Part III of the Constitution. The limitations on the legislature in the field
of legislation are applicable to Governor also.
G
62. It was next argued that there is absolute discretion with the
Governor to make modification and exception as to the applicability of
laws; however, absolute discretion cannot be said to be exercisable
arbitrarily. The Constitution has not conferred any arbitrary poweron
any constitutional functionary. Arbitrariness is an antithesis to the concept
of equality, which is enshrined in Article 14 of the Constitution, and the H
same is its spirit and soul.
78 SUPREME COURT REPORTS [2020] 6 S.C.R.
A 63. The provisions of the Constitution are required to be interpreted
keeping in view the will of the makers thereof as held in S.R. Chaudhuri
v. State of Punjab &Ors., (2001) 7 SCC 126 thus:
“33. Constitutional provisions are required to be understood and
interpreted with an object-oriented approach. A Constitution must
B not be construed in a narrow and pedantic sense. The words used
may be general in terms but, their full import and true meaning
have to be appreciated considering the true context in which the
same are used and the purpose which they seek to achieve.
Debates in the Constituent Assembly referred to in an earlier part
of this judgment clearly indicate that a non-member’s inclusion in
C the Cabinet was considered to be a “privilege” that extends only
for six months, during which period the member must get elected,
otherwise he would cease to be a Minister. It is a settled position
that debates in the Constituent Assembly may be relied upon as
an aid to interpret a constitutional provision because it is the
D function of the court to find out the intention of the framers of the
Constitution. We must remember that a Constitution is not just a
document in solemn form, but a living framework for the
Government of the people exhibiting a sufficient degree of cohesion
and its successful working depends upon the democratic spirit
underlying it being respected in letter and in spirit. The debates
E clearly indicate the “privilege” to extend “only” for six months.”
64. The very concept of equality, which is sought to be achieved
by protective discrimination, is not just a matter of classification but also
aims against arbitrariness. Equality is the antithesis of arbitrariness. In
Col. A.S. Iyerand Ors. v. V. Balasubramanyam, (1980) 1 SCC 634,
F the Court as to the doctrine of classification observed:
“57. x xx This tendency, in an elitist society with a diehard caste
mentality, is a disservice to our founding faith, even if judicially
sanctified. Subba Rao, J., hit the nail on the head when he
cautioned in Lachhman Das v. State of Punjab, (1963) 2 SCR
G 353, 395: AIR 1963 SC 222:
“The doctrine of classification is only a subsidiary rule
evolved by courts to give a practical content to the said
doctrine. Over-emphasis on the doctrine of classification
or an anxious and sustained attempt to discover some basis
H for classification may gradually and imperceptibly deprive
CHEBROLU LEELA PRASAD RAO & ORS. v. 79
STATE OF A.P. & ORS. [ARUN MISHRA, J.]
the article of its glorious content. That process would A
inevitably end in substituting the doctrine of classification
for the doctrine of equality; the fundamental right to equality
before the law and the equal protection of the laws may be
replaced by the doctrine of classification.”
65. In Ajay Hasia and Ors. v. Khalid Mujib Sehravardi and B
Ors., (1981) 1 SCC 722, the Court considered the doctrine of classification.
The classification is not only to be reasonable;it must satisfy the requisite
conditions. Whenever there is arbitrariness in State action, whether it be
of the legislature or the executive or authority under Article 12, the
provisions of Article 14 immediately springs into action to strike down
such an action. The Court held: C
“16. If the Society is an ‘authority’ and therefore ‘State’ within
the meaning of Article 12, it must follow that it is subject to the
constitutional obligation under Article 14. The true scope and ambit
of Article 14 have been the subject-matter of numerous decisions,
and it is not necessary to make any detailed reference to them. It D
is sufficient to state that the content and reach of Article 14 must
not be confused with the doctrine of classification. Unfortunately,
in the early stages of the evolution of our constitutional law, Article
14 came to be identified with the doctrine of classification because
the view was taken was that that article forbids discrimination E
and there would be no discrimination where the classification
making the differentia fulfils two conditions, namely, (i) that the
classification is founded on an intelligible differentia which
distinguishes persons or things that are grouped together from
others left out of the group; and (ii) that that differentia has a
rational relation to the object sought to be achieved by the impugned F
legislative or executive action. It was for the first time in E.P.
Royappa v. State of Tamil Nadu, (1974) 2 SCR 348: (1974) 4
SCC 3, that this Court laid bare a new dimension of Article 14 and
pointed out that that article has highly activist magnitude and it
embodies a guarantee against arbitrariness. This Court speaking G
through one of us (Bhagwati, J.) said: SCC p. 38: SCC (L&S) p.
200, para 85]
“The basic principle which, therefore, informs both Articles 14
and 16 is equality and inhibition against discrimination. Now,
what is the content and reach of this great equalising principle? H
80 SUPREME COURT REPORTS [2020] 6 S.C.R.
A It is a founding faith, to use the words of Bose, J., ‘a way of
life’, and it must not be subjected to a narrow pedantic or
lexicographic approach. We cannot countenance any attempt
to truncate its all-embracing scope and meaning, for to do so
would be to violate its activist magnitude. Equality is a dynamic
concept with many aspects and dimensions and it cannot be
B
“cribbed, cabined and confined” within traditional and
doctrinaire limits. From a positivistic point of view, equality is
antithetic to arbitrariness. In fact, equality and arbitrariness
are sworn enemies; one belongs to the rule of law in a republic
while the other, to the whim and caprice of an absolute monarch.
C Where an act is arbitrary it is implicit in it that it is unequal both
according to political logic and constitutional law and is therefore
violative of Article 14, and if it affects any matter relating to
public employment, it is also violative of Article 16. Articles 14
and 16 strike at arbitrariness in State action and ensure fairness
and equality of treatment.”
D
This vital and dynamic aspect which was till then lying latent and
submerged in the few simple but pregnant words of Article 14
was explored and brought to light in Royappa case, (1974) 2 SCR
348: (1974) 4 SCC 3, and it was reaffirmed and elaborated by this
Court in Maneka Gandhi v. Union of India, (1978) 1 SCC 248,
E where this Court again speaking through one of us (Bhagwati, J.)
observed: (SCC pp. 283-84, para 7)
“Now the question immediately arises as to what is the
requirement of Article 14: What is the content and reach of
the great equalising principle enunciated in this Article? There
F can be no doubt that it is a founding faith of the Constitution. It
is indeed the pillar on which rests securely the foundation of
our democratic republic. And, therefore, it must not be subjected
to a narrow, pedantic or lexicographic approach. No attempt
should be made to truncate its all-embracing scope and meaning,
G for to do so would be to violate its activist magnitude. Equality
is a dynamic concept with many aspects and dimensions and it
cannot be imprisoned within traditional and doctrinaire limits....
Article 14 strikes at arbitrariness in State action and ensures
fairness and equality of treatment. The principle of
reasonableness, which legally as well as philosophically, is an
H
CHEBROLU LEELA PRASAD RAO & ORS. v. 81
STATE OF A.P. & ORS. [ARUN MISHRA, J.]
essential element of equality or non-arbitrariness pervades A
Article 14 like a brooding omnipresence.”
This was again reiterated by this Court in International Airport
Authority case, (1979) 3 SCC 489, at p. 1042 (SCC p. 511) of the
Report. It must therefore now be taken to be well settled that
what Article 14 strikes at is arbitrariness because an action that is B
arbitrary must necessarily involve negation of equality. The doctrine
of classification which is evolved by the courts is not paraphrase
of Article 14 nor is it the objective and end of that article. It is
merely a judicial formula for determining whether the legislative
or executive action in question is arbitrary and therefore
constituting denial of equality. If the classification is not reasonable C
and does not satisfy the two conditions referred to above, the
impugned legislative or executive action would plainly be arbitrary
and the guarantee of equality under Article 14 would be breached.
Wherever therefore there is arbitrariness in State action whether
it be of the legislature or of the executive or of an “authority” D
under Article 12, Article 14 immediately springs into action and
strikes down such State action. In fact, the concept of
reasonableness and non-arbitrariness pervades the entire
constitutional scheme and is a golden thread which runs through
the whole of the fabric of the Constitution.”
E
66. In E.P. Royappa v. State of Tamil Nadu & Anr., (1974) 4
SCC 3, concerning the concept of equality and arbitrariness in action, in
the context of Articles 14 and 16, the Court held:
“85. The last two grounds of challenge may be taken up together
for consideration. Though we have formulated the third ground of F
challenge as a distinct and separate ground, it is really in substance
and effect merely an aspect of the second ground based on
violation of Articles 14 and 16. Article 16 embodies the fundamental
guarantee that there shall be equality of opportunity for all citizens
in matters relating to employment or appointment to any office
under the State. Though enacted as a distinct and independent G
fundamental right because of its great importance as a principle
ensuring equality of opportunity in public employment which is so
vital to the building up of the new classless egalitarian society
envisaged in the Constitution, Article 16 is only an instance of the
application of the concept of equality enshrined in Article 14. In H
82 SUPREME COURT REPORTS [2020] 6 S.C.R.
A other words, Article 14 is the genus while Article 16 is a species.
Article 16 gives effect to the doctrine of equality in all matters
relating to public employment. The basic principle which, therefore,
informs both Articles 14 and 16 is equality and inhibition against
discrimination. Now, what is the content and reach of this great
equalising principle? It is a founding faith, to use the words of
B
Bose. J., “a way of life”, and it must not be subjected to a narrow
pedantic or lexicographic approach. We cannot countenance any
attempt to truncate its all-embracing scope and meaning, for to do
so would be to violate its activist magnitude. Equality is a dynamic
concept with many aspects and dimensions and it cannot be
C “cribbed, cabined and confined” within traditional and doctrinaire
limits. From a positivistic point of view, equality is antithetic to
arbitrariness. In fact equality and arbitrariness are sworn enemies;
one belongs to the rule of law in a republic while the other, to the
whim and caprice of an absolute monarch. Where an act is
arbitrary, it is implicit in it that it is unequal both according to political
D
logic and constitutional law and is therefore violative of Article
14, and if it effects any matter relating to public employment, it is
also violative of Article 16. Articles 14 and 16 strike at arbitrariness
in State action and ensure fairness and equality of treatment. They
require that State action must be based on valid relevant principles
E applicable alike to all similarly situate and it must not be guided by
any extraneous or irrelevant considerations because that would
be denial of equality. Where the operative reason for State action,
as distinguished from motive inducing from the antechamber of
the mind, is not legitimate and relevant but is extraneous and outside
the area of permissible considerations, it would amount to mala
F
fide exercise of power and that is hit by Articles 14 and 16. Mala
fide exercise of power and arbitrariness are different lethal
radiations emanating from the same vice: in fact the latter
comprehends the former. Both are inhibited by Articles 14 and
16.”
G 67. In Maneka Gandhi v. Union of India & Anr., (1978) 1 SCC
248, this Court held that fundamental rights are not distinct and mutually
exclusive rights. Each freedom has its dimensions. The law is not freed
from the necessity to meet the challenge of another guaranteed freedom.
Thus, the law effecting personal liberty under Article 21 will also have to
H satisfy the test under Articles 14 and 19. In majority opinion, Beg, J.
observed:
CHEBROLU LEELA PRASAD RAO & ORS. v. 83
STATE OF A.P. & ORS. [ARUN MISHRA, J.]
“202. Articles dealing with different fundamental rights contained A
in Part III of the Constitution do not represent entirely separate
streams of rights which do not mingle at many points. They are all
parts of an integrated scheme in the Constitution. Their waters
must mix to constitute that grand flow of unimpeded and impartial
Justice (social, economic and political), Freedom (not only of
B
thought, expression, belief, faith and worship, but also of association,
movement, vocation or occupation as well as of acquisition and
possession of reasonable property), of Equality (of status and of
opportunity, which imply absence of unreasonable or unfair
discrimination between individuals, groups, and classes) and of
Fraternity (assuring dignity of the individual and the unity of the C
nation), which our Constitution visualises. Isolation of various
aspects of human freedom, for purposes of their protection, is
neither realistic nor beneficial but would defeat the very objects
of such protection.”
Justices Bhagwati, Untwalia and Fazal Ali observed: D
“The nature and requirement of the procedure under Article 21
7. Now, the question immediately arises as to what is the
requirement of Article 14 : what is the content and reach of the
great equalising principle enunciated in this article? There can be
no doubt that it is a founding faith of the Constitution. It is indeed E
the pillar on which rests securely the foundation of our democratic
republic. And, therefore, it must not be subjected to a narrow,
pedantic or lexicographic approach. No attempt should be made
to truncate its all-embracing scope and meaning, for to do so would
be to violate its activist magnitude. Equality is a dynamic concept F
with many aspects and dimensions and it cannot be imprisoned
within traditional and doctrinaire limits. We must reiterate here
what was pointed out by the majority in E.P. Royappa v. State of
Tamil Nadu, (1974) 2 SCR 348, namely, that “from a positivistic
point of view, equality is antithetic to arbitrariness. In fact equality
and arbitrariness are sworn enemies; one belongs to the rule of G
law in a republic, while the other, to the whim and caprice of an
absolute monarch. Where an act is arbitrary, it is implicit in it that
it is unequal both according to political logic and constitutional law
and is therefore violative of Article 14”. Article 14 strikes at
arbitrariness in State action and ensures fairness and equality of H
84 SUPREME COURT REPORTS [2020] 6 S.C.R.
A treatment...The principle of reasonableness, which legally as well
as philosophically, is an essential element of equality or non-
arbitrariness pervades Article 14 like a brooding omnipresence
and the procedure contemplated by Article 21 must answer the
test of reasonableness in order to be in conformity with Article
14. It must be “right and just and fair” and not arbitrary, fanciful
B
or oppressive; otherwise, it would be no procedure at all and the
requirement of Article 21 would not be satisfied.”
Krishna Iyer, J. observed:
“96. A thorny problem debated recurrently at the bar, turning on
C Article 19, demands some juristic response although avoidance of
overlap persuades me to drop all other questions canvassed before
us. The Gopalan verdict, with the cocooning of Article 22 into a
self-contained code, has suffered suppression at the hands of R.C.
Cooper, (1970) 3 SCR 530. By way of aside, the fluctuating
fortunes of fundamental rights, when the proletarist and the
D proprietarist have asserted them in Court, partially provoke
sociological research and hesitantly project the Cardozo thesis of
sub-conscious forces in judicial noesis when the cycloramic review
starts from Gopalan, moves on to In re Kerala Education Bill,
1959 SCR 995 and then on to All-India Bank Employees’
E Association, (1962) 3 SCR 269, next to Sakal Papers, (1962) 3
SCR 842, crowning in Cooper and followed by Bennett Coleman,
(1973) 2 SCR 757 and Shambhu Nath Sarkar, (1973) 1 SCC 856.
Be that as it may, the law is now settled, as I apprehend it, that no
article in Part III is an island but part of a continent and the
conspectus of the whole part gives the direction and correction
F needed for interpretation of these basic provisions. Man is not
dissectible into separate limbs and, likewise, cardinal rights in an
organic constitution, which make man human have a synthesis.
The proposition is indubitable that Article 21 does not, in a given
situation, exclude Article 19 if both rights are breached.”
G 68. In Neelima Misra v. Harinder Kaur Paintal & Ors., (1990)
2 SCC 746, this Court held that an administrative action, whether
legislative, administrative or quasi-judicial must not be illegal, irrational
or arbitrary. The non-obstante clause as to what it excludes is to be
considered only in light of extent of power conferred on the Governor to
H issue a notification, to order that Act of the legislature shall not apply and
CHEBROLU LEELA PRASAD RAO & ORS. v. 85
STATE OF A.P. & ORS. [ARUN MISHRA, J.]
may make exceptions and modifications. However, at the same time A
power is to be exercised within bounds of legislative power conferred
on the legislature. The special control is conferred upon the Governor to
direct that any Act shall not apply, which could not otherwise apply or be
applicable in the area without such exceptions or modifications as ordered
by the Governor.
B
Effect of the non-obstante clause:
69. Para 5(1) of the Fifth Schedule of the Constitution starts with
a non-obstante clause. What is the effect of the non-obstante clause
vis-à-vis the applicability to other provisions of the Constitution? Whether
the provisions of Para 5(1) prevail over all other provisions of the C
Constitution? Whether the fundamental rights in Part III of the
Constitution are inapplicable and need not be satisfied?
70. The provision of the Fifth Schedule beginning with the words
“notwithstanding anything in this Constitution” cannot be construed as
taking away the provision outside the limitations on the amending power D
and has to be harmoniously construed consistent with the foundational
principles and the basic features of the Constitution.
71. In R.C. Poudyal v. Union of India & Ors., 1994 Supp. (1)
SCC 324, this Court considered the question whether the non-obstante
clause (f) to Article 371F inserted by the Constitution (36th Amendment) E
Act, 1975 containing a special provision for the State of Sikkim. The
Governor of Sikkim has exclusive responsibility for peace and equitable
arrangement, for social and economic advancement and various other
provisions have been made that the non-obstante clause is contained in
Article 371-F, cannot be construed as taking clause (f) of Article 371F
outside the limitation on the amendment power itself. This Court opined F
that:
“102. It is, however, urged that Article 371-F starts with a non-
obstante clause, and therefore the other provisions of the
Constitution do not limit the power to impose conditions. But Article
371-F cannot transgress the basic features of the Constitution. G
The non-obstante clause cannot be construed as taking clause (f)
of Article 371-F outside the limitations on the amendment power
itself. The provisions of clause (f) of Article 371-F and Article 2
have to be construed harmoniously consistent with the foundational
principles and basic features of the Constitution. Whether clause
H
86 SUPREME COURT REPORTS [2020] 6 S.C.R.
A (f) has the effect of destroying a basic feature of the Constitution
depends, in turn, on the question whether reservation of seats in
the legislature based on ethnic group is itself destructive of
democratic principle. Whatever the merits of the contentions be,
it cannot be said that the issues raised are non-justiciable.
B 103. In Mangal Singh v. Union of India, (1967) 2 SCR 109, 112
this Court said:
“Power with which the Parliament is invested by Articles 2 and 3,
is power to admit, establish, or from new States which conform to
the democratic pattern envisaged by the Constitution; and the
C power which the Parliament may exercise by law is supplemental,
incidental or consequential to the admission, establishment or
formation of a State as contemplated by the Constitution, and is
not power to override the constitutional scheme.”
104. Even if clause (f) of Article 371-F is valid, if the terms and
D conditions stipulated in a law made under Article 2 read with clause
(f) of Article 371-F go beyond the constitutionally permissible
latitudes, that law can be questioned as to its validity. The
contention that the vires of the provisions and effects of such a
law are non-justiciable cannot be accepted.”
E 72. In State of Sikkim v. Surendra Prasad Sharma & Ors.,
(1994) 5 SCC 282, this Court held that the laws, which were in force
before the commencement of the Constitution of India, must be consistent
with Part III of the Constitution to continue to be in force. This Court
opined:
F “11. From the above constitutional scheme what emerges is that
the laws which were in force in the territory of India immediately
before the commencement of the Constitution shall continue in
force therein until altered, repealed or amended by a competent
legislature or authority except to the extent inconsistent with Part
III of the Constitution. However, notwithstanding anything in the
G Constitution, Parliament was empowered to make laws inter alia
with respect to any matter referred to in Article 16(3). Thus,
Parliament could prescribe by law the requirement as to residence
within a State or Union Territory and if such a law is made nothing
in Article 16 will stand in the way of such prescription. Since
Article 16(3) is in Part III of the Constitution, the law, if made,
H
CHEBROLU LEELA PRASAD RAO & ORS. v. 87
STATE OF A.P. & ORS. [ARUN MISHRA, J.]
would clearly be intra vires the Constitution. By virtue of Article A
35(b) any law in force immediately before the commencement of
the Constitution in relation to any matter in Article 16(3) shall
continue in force, notwithstanding anything in the Constitution.
The expression ‘law in force’ has the meaning assigned to it in
Article 372, Explanation I. This is the conjoint effect of Articles
B
13, 16(3), 35(b) and 372 of the Constitution. Since Sikkim was
never a part of the territory of India immediately before the
commencement of the Constitution, the High Court has ruled out
the applicability of the said provisions in this case. Article 2 provides
that Parliament may by law admit into the Union, or establish,
new States on such terms and conditions as it thinks fit. The law C
so made must conform to the requirements of Article 13. That is
the view expressed in Poudyal case, 1944 Supp (1) SCC 324. But
the historical events preceding its inclusion in the territory of India
must be borne in mind. Sikkim during the British period was ruled
by a monarch called the Chogyal. After India became free there
D
was a popular demand from the people of Sikkim for its merger
with India. Pursuant to the sentiments expressed by the People of
Sikkim, a treaty was entered into between India and the Chogyal
short of merger which was followed up by consequential changes.
However, the public demand became violent forcing the Chogyal
to request the Union Government to assume the responsibility for E
good Government. Ultimately, on 8-5-1973, a formal agreement
was signed between the Chogyal and the political leaders of Sikkim
on the one side and the Government of India on the other in
pursuance whereto the people of Sikkim were to enjoy certain
democratic rights. This development would show that Sikkim which
F
was a British protectorate under the British paramountcy until
1947 came within the protectorate of India under the treaty of 3-
12-1950 and later became an associate State by the insertion of
Article 2-A in the Constitution by the 35th Amendment on the
terms and conditions set out in the Tenth Schedule and soon
thereafter by the 36th Amendment Article 2-A was deleted and G
full statehood under the Union of India was conferred on the terms
and conditions incorporated in the newly added Article 371-F.
These constitutional changes had to be introduced in 1975 in
reciprocation of the understanding on which Sikkim agreed to its
merger with India and to fulfil the aspirations of the Sikkimese
H
88 SUPREME COURT REPORTS [2020] 6 S.C.R.
A people. The terms and conditions for merger of Sikkim found in
Article 371-F have, therefore, to be viewed in this background.”
73. However, under the special agreement special provisions
contained in Article 371-F(k), all laws in force in the State of Sikkim
were protected until amended or repealed to ensure a smooth transition
B from Chogyal’s rule to democratic rules under the Constitution. Article
371-F(l) enshrines that many of such existing laws may be inconsistent
with the Constitution, as such immunity was granted in the transitional
period, this Court in State of Sikkim v. Surendra Prasad Sharma
(supra)considered non-obstante clause in Article 371-F and observed
that the laws in force would have had to meet the test of Article 13 of
C the Constitution. It was held:
“22. Article 371-F, is as stated earlier, a special constitutional
provision concerning the State of Sikkim. The reason why it begins
with a nonobstante clause is that the matters referred to in the
various clauses immediately following required a protective cover
D so that such matters are not struck down as unconstitutional
because they do not satisfy the constitutional requirement. Unless
such immunity was granted, ‘the laws in force’ would have had to
meet the test of Article 13 of the Constitution. Same being the
objective, existing laws or laws in force came to be protected by
E clause (k) added to Article 371-F. The said laws in force in the
State of Sikkim were, therefore, protected, until amended or
repealed, to ensure a smooth transition from the Chogyal’s rule to
the democratic rule under the Constitution. Inherent in clause (l)
is the assumption that many of such existing laws may be
inconsistent with the Constitution and, therefore, the President
F came to be conferred with a special power to make adaptations
and modifications with a view to making the said rule consistent
with the Constitution. Of course, this power had to be exercised
within two years from the appointed day. If any adaptation or
modification is made in the law in force prevailing prior to the
G appointed day, the law would apply subject to such adaptation and
modification. It is thus obvious that the adaptation and modification
made by the President in exercise of this special power does not
have the effect of the law ceasing to be a law in force within the
meaning of clause (k) of Article 371-F. Therefore, on the plain
language of the said provision it is difficult to hold that the effect
H
CHEBROLU LEELA PRASAD RAO & ORS. v. 89
STATE OF A.P. & ORS. [ARUN MISHRA, J.]
of adaptation or modification is to take the law out of the purview A
of ‘laws in force’.”
74. The non-obstante clause contained in Para 5(1) of the Fifth
Schedule of the Constitution means the Governor can exercise power in
spite of the provisions contained in Article 245 of the Constitution,
conferring the power upon Parliament to make laws and the legislature B
of the State. The Parliament has the power to enact the law. It cannot
be questioned on the ground that it would have extra-territorial operation.
75. The non-obstante clause has also been considered in Smt.
Parayankandiyal Eravath Kanapravan Kalliani Amma & Ors. v. K.
Devi &Ors., AIR 1996 SC 1963. The scope has to be considered in the C
context and purpose for which it has been carved out.
76. In Peerless General Finance and Investment Co. Ld. And
Anr. v. Reserve Bank of India, (1992) 2 SCC 343, the Court held that
the court has to make every endeavour to ensure that the efficacy of
fundamental rights is maintained and the legislature is not invested with D
unlimited power. The Court is to guard against the gradual encroachment
and strike down a restriction as soon as it reaches that magnitude of
total infringement of the right. The Court observed:
“48. x x x The State can regulate the exercise of the fundamental
right to save the public from a substantive evil. The existence of E
the evil as well as the means adopted to check it are the matters
for the legislative judgment. But the Court is entitled to consider
whether the degree and mode of the regulation is in excess of the
requirement or is imposed in an arbitrary manner. The Court has
to see whether the measure adopted is relevant or appropriate to
the power exercised by the authority or whether it overstepped F
the limits of social legislation. Smaller inroads may lead to larger
inroads and ultimately result in total prohibition by indirect method.
If it directly transgresses or substantially and inevitably affects
the fundamental right, it becomes unconstitutional, but not where
the impact is only remotely possible or incidental. The Court must G
lift the veil of the form and appearance to discover the true
character and the nature of the legislation, and every endeavour
should be made to have the efficacy of fundamental right
maintained and the legislature is not invested with unbounded
power. The Court has, therefore, always to guard against the
H
90 SUPREME COURT REPORTS [2020] 6 S.C.R.
A gradual encroachments and strike down a restriction as soon as it
reaches that magnitude of total annihilation of the right.”
77. In case the argument raised on behalf of the respondent is
accepted that the Governor has unfettered power, notwithstanding the
provisions contained in Part III of the Constitution, Article 13 of the
B Constitution becomes redundant. The power of judicial review of court
and legislature would loom into insignificance. There is no power to the
legislature or to the Governor to act contrary to the constitutional
provisions, and they cannot enact a law in derogation to the provisions
contained in Part III of the Constitution. In Chandavarkar S. R. Rao v.
Ashalata S. Guram, (1986) 4 SCC 447, it has been held that the effect
C of the non-obstante clause is that in spite of the provisions of the Act or
any other Act mentioned in the non-obstante clause or any contract or
document mentioned, the enactment following it will have its full operation
or that the provision vested in the non-obstante clause would not be an
impediment for the operation of the enactment. In case Governor decides
D not to apply the Act of the Parliament or legislature of the State or apply
them with exceptions and modifications, he is empowered to do so. But
it would be subject to the restriction on the very legislative power with
which the Parliament or legislature of State suffers from the above-
avowed objective devised by the framers of the Constitution.
E 78. The power is conferred on the Governor to deal with the
scheduled areas. It is not meant to prevail over the Constitution. 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. In our considered opinion, the power of the Governor does
F not supersede the fundamental rights under Part III of the Constitution.
It has to be exercised subject to Part III and other provisions of the
Constitution. When Para 5 of the Fifth Schedule confers power on the
Governor, it is not meant to be conferral of arbitrary power. The
Constitution can never aim to confer any arbitrary power on the
G constitutional authorities. They are to be exercised in a rational manner
keeping in view the objectives of the Constitution. The powers are not in
derogation but the furtherance of the constitutional aims and objectives.
In Re: Question No.1(d): Whether the exercise of power
under the Fifth Schedule of the Constitution overrides any parallel
H exercise of power by the President under Article 371D?
CHEBROLU LEELA PRASAD RAO & ORS. v. 91
STATE OF A.P. & ORS. [ARUN MISHRA, J.]
79. It was argued on behalf of the appellants that Article 371D A
was promulgated in view of geographical disparity in public employment
within the State of Andhra Pradesh. The candidates from certain districts/
areas of the State capturing a disproportionately large number of public
posts. Article 371D requires the State Government to reorganise class
or classes of posts in the State into different local cadres for different
B
parts of the State. The Presidential Order of 1975 was issued providing
district/zone as a unit for the local cadre. Whereas, G.O. provided that
all the posts of teachers in the schools situated in Scheduled Areas in the
State of Andhra Pradesh shall be filled in with the local Scheduled Tribes
candidates only. A district or zone is the unit for the local cadre. Whereas
on the other hand, the impugned G.O.Ms. No.3 of 2000 provided that all C
the posts of teachers in the Scheduled Area, forming part of a district, to
be filled up by local Scheduled Tribe candidates only. The impugned
G.O. reserved all the posts in the Scheduled Area; thus, aspiring
candidates in a district/zone in the Scheduled Areas cannot apply for the
post of teachers in the district or zone as all the posts have been reserved
D
for local Scheduled Tribe candidates and “they cannot apply outside the
district or zone” because of the restrictions under Article 371D of the
Constitution.
80. Learned counsel for the appellant further argued that the
candidates other than Scheduled Tribe candidates in a district residing in
Scheduled Areas cannot apply at all, and they have been deprived of the E
opportunity of getting public employment. The impugned G.O. takes away
the entire opportunity of non-Scheduled Tribe candidates even from
applying for the post of teachers. Thus, the impugned G.O. transgresses
Article 371D of the Constitution and is unconstitutional. The Governor
could not have issued the notification in such a manner in exercise of F
powers under Para 5 of Fifth Schedule, which is repugnant to the
Presidential Order issued under Article 371D. The Governor cannot
exercise the powers under Para 5(1) of Fifth Schedule and cannot modify
or override the provisions of Article 371D of the Constitution.
81. It was argued on behalf of respondents that there is no G
repugnancy in the Presidential Order and the impugned notification issued
by the Governor. Article 371D also starts with non-obstante clause
and conflict between the non-obstante clause as far as possible must
be resolved by way of harmonious construction of two conflicting non-
obstante clauses as laid down in Jay Engineering Works Limited v.
Industry Facilitation Council and Anr., (2006) 8 SCC 677: H
92 SUPREME COURT REPORTS [2020] 6 S.C.R.
A “28. Both the Acts contain non obstante clauses. Ordinary rule
of construction is that where there are two non obstante clauses,
the latter shall prevail. But it is equally well settled that ultimate
conclusion thereupon would depend upon the limited context of
the statute. (See Allahabad Bank, (2000) 4 SCC 406, para 34.)
B 29. In Maruti Udyog Ltd. v. Ram Lal, (2005) 2 SCC 638, it was
observed: (SCC p. 653, para 39)
“39. The interpretation of Section 25-J of the 1947 Act as
propounded by Mr Das also cannot also be accepted inasmuch
as in terms thereof only the provisions of the said chapter shall
C have effect notwithstanding anything inconsistent therewith
contained in any other law including the Standing Orders made
under the Industrial Employment (Standing Orders) Act, but it
will have no application in a case where something different is
envisaged in terms of the statutory scheme. A beneficial statute,
as is well known, may receive liberal construction but the same
D cannot be extended beyond the statutory scheme.”
30. In Sarwan Singh v. Kasturi Lal, (1977) 1 SCC 750, this
Court opined: (SCC p. 760, para 20)
“When two or more laws operate in the same field and each
E contains a non obstante clause stating that its provisions will override
those of any other law, stimulating and incisive problems of
interpretation arise. Since statutory interpretation has no
conventional protocol, cases of such conflict have to be decided
in reference to the object and purpose of the laws under
consideration.”
F
31. The endeavour of the court would, however, always be to
adopt a rule of harmonious construction.”
It was laid down that endeavour of the court would always be to
adopt a rule of harmonious construction, and the non-obstante clause
must be given effect as to the Parliament intent and not beyond that. It
G
was also urged that if the latter provision is found to be generic as against
the earlier provision, which is a special provision, then the earlier provision
shall prevail. Reliance has also been placed on Maharashtra Tubes
Ltd. v. State Industrial & Investment Corporation of Maharashtra
Ltd. and Anr., (1993) 2 SCC 144. The policy underlying the provisions
H has to be considered, as observed in Jay Engineering Works (supra).
CHEBROLU LEELA PRASAD RAO & ORS. v. 93
STATE OF A.P. & ORS. [ARUN MISHRA, J.]
The notification issued, according to the Presidential Order, creates A
district/zonal cadre for teachers. The Governor Order reserved the posts
of teachers in the Scheduled Area for Scheduled Tribes. There is no
strict conflict between the aforesaid notification, and harmonious
construction is possible.
82. It was further urged on behalf of respondents that the State of B
Andhra Pradesh was reorganised in the year 1956, and part of the areas
falling in the State of Hyderabad, Telugu speaking areas known as
Telangana merged with Andhra Pradesh. In the Telangana region, Mulki
Rules prevail, which provide for residence as a requirement for public
employment. After the reorganisation, the Central Government enacted
the A.P. Public Employment (Requirement as to Residence) Act, 1957, C
to continue the same. On challenge being made as to the provisions
being violative of Article 16(2), this Court in Narasimha Rao v. State of
A.P., (1969) 1 SCC 839, opined that the residence requirement as
unconstitutional, resulting in agitation demanding division of State. The
Parliament amended the Constitution by inserting Article 371D, D
empowering the President to issue an order providing equal opportunities
to people belonging to different parts of the State in education and public
employment. Under para 3 of the Presidential Order, the civil posts in
the State were to be organised on local cadres, such as Lower Division
Clerks and equivalent Non-Gazetted category and existed Gazetted and
Non-Gazetted category in each department. Paras 4 and 5 of the E
Presidential Order provided that employees to be allotted to local cadres/
areas, which shall be a unit for all purpose. Under para 6 of the Presidential
Order, local areas have to be the basis for various posts making district/
zone, multi zone and State-wide as local areas for all civil posts. Para 8
provided for reservation by way of direct recruitment for local candidates. F
Article 371D(10) provided for non-obstante clause to make provisions
immune from challenge from Articles 14 and 16 of the Constitution. The
operation of Article 371D is confined to providing for reservation in direct
recruitment for local candidates and also for various percentages of
reservation for locals. Under para 6(1) each district shall be regarded as
local area. The action is not violative of Article 371D. It was further G
argued on behalf of respondents that the President has issued notification
under Article 371D towards the promotion of equality of opportunity.
The notification did not deal with Scheduled Areas or employment
opportunities in Scheduled Areas. No notification issued by the President
under Article 371D collides or is in conflict with the impugned notification. H
94 SUPREME COURT REPORTS [2020] 6 S.C.R.
A The preferences given to the local areas within the meaning of Presidential
notification or exclusion of non-local areas cadre will not offend Article
14 of the Constitution, for which reliance has been placed on Sandeep
and Ors. v. Union of India and Ors., (2016) 2 SCC 328, Dr. Fazal
Ghafoor v. Principal, Osmania Medical College, Hyderabad and
Ors., (1988) 4 SCC 532, Dr. Fazal Ghafoor v. Union of India and
B
Ors., (1988) Supp. SCC 794, N.T.R. University of Health Science,
Vijayawada v. G. Babu Rajendra Prasad and Anr., (2003) 5 SCC
350. Similar logic, which is applicable to Articles 14 and 371D, is also to
be relevant in the context of what the Governor does under the Fifth
Schedule. Consequently, what the Governor has done to greater equality
C for Scheduled Areas will not be faulted.
83. The non-obstante clause in Article 371D will not annul the
non-obstante clause in Para 5 of the Fifth Schedule. Two constitutional
provisions operate in distinct domain. Article 371D was not enacted to
be a super imposition on Fifth Schedule. The object and purpose of
D legislations or provisions with respect to non-obstante clause are
distinct. Thus, the court will not see any conflict. Reference has been
made to R.S. Raghunath v. State of Karnataka and Ors.,(1991) Supp.
1 SCR 387, Sarwan Singh and Ors. v. Kasturi Lal, (1977) 2 SCR 421,
Sanwarmal Kejriwal v. Vishwa Co-operative Housing Society Ltd.
and Ors., (1990) 1 SCR 862, The South India Corporation (P) Ltd. v.
E The Secretary, Board of Revenue Trivandrum and Ors., (1964) 4
SCR 280, and Dr. Fazal Ghafoor v. Principal, Osmania Medical
College, Hyderabad and Ors., (1988) 4 SCC 532.
84. Article 371-D has been inserted in the Constitution of India.
Sub-clauses 1, 2 and 10 of Article 371-D are extracted hereunder:
F
“371D. Special provisions with respect to the State of Andhra
Pradesh or the State of Telangana.—(1) The president may
by order made with respect to the state of Andhra Pradesh or the
State of Telangana provide, having regard to the requirement of
each State, for equitable opportunities and facilities for the people
G belonging to different parts of such State, in the matter of public
employment and in the matter of education, and different provisions
may be made for various parts of the States.
(2) An order made under clause (1) may, in particular,—
H
CHEBROLU LEELA PRASAD RAO & ORS. v. 95
STATE OF A.P. & ORS. [ARUN MISHRA, J.]
(a) require the State Government to organise any class or A
classes of posts in a civil service of, or any class or classes of
civil posts under, the State into different local cadres for different
parts of the State and allot in accordance with such principles
and procedure as may be specified in the order the persons
holding such posts to the local cadres so organised;
B
(b) specify any part or parts of the State which shall be regarded
as the local area—
(i) for direct recruitment to posts in any local cadre (whether
organised in pursuance of an order under this article or
constituted otherwise) under the State Government; C
(ii) for direct recruitment to posts in any cadre under any local
authority within the State; and
(iii) for the purposes of admission to any University within the
State or to any other educational institution which is subject
to the control of the State Government; D
(c) specify the extent to which, the manner in which and the
conditions subject to which, preference or reservation shall be
given or made—
(i) in the matter of direct recruitment to posts in any such
E
cadre referred to in sub-clause (b) as may be specified in
this behalf in the order;
(ii) in the matter of admission to any such University or other
educational institution referred to in sub-clause (b) as may
be specified in this behalf in the order,
F
to or in favour of candidates who have resided or studied for any
period specified in the order in the local area in respect of such
cadre, University or other educational institution, as the case may
be.
(3) x x x G
10) The provisions of this article and of any order made by the
President thereunder shall have effect notwithstanding anything
in any other provision of this Constitution or in any other law for
the time being in force.”
H
96 SUPREME COURT REPORTS [2020] 6 S.C.R.
A The provisions contained in Article 371D were inserted by the
Constitution (Thirty-second Amendment) Act, 1973, w.e.f. 1.7.1974 and
has further been amended by the Andhra Pradesh Reorganisation Act,
2014, applicable to the State of Andhra Pradesh or the State of Telangana.
85. The President in exercise of powers under Article 371-D(1)
B and (2) promulgated order, namely, Andhra Pradesh Public Employment
(Organisation of Local Cadres and Regulation of Direct Recruitment)
Order, 1975. Para 3 provided for organisation of local cadres. Recruitment
to various categories has to be made to local cadres taking district as a
unit or 3 or 4 districts comprising as a zone. The local area has been
defined in Para 6(1) thus:
C
“Local areas: (1) Each district shall be regarded as a local area–
(i) For direct recruitment to posts in any local cadre under the
State Government comprising all or any of the posts in any
department in that district belonging to the category of Junior
D Assistants or to any other category equivalent to or lower than
that of a Junior Assistant.
(ii) For direct recruitment to posts in any cadre under any local
authority within that district, carrying a sale of pay the minimum
of which does not exceed the minimum of the scale of pay of a
E Junior Assistant or a fixed pay not exceeding that amount.”
For recruitment to the posts of teachers, a district is a unit.
Para 7 defines local candidates. Para 8 provides that 80 per cent
of the posts to be filled by direct recruitment. The matter of recruitment
to various local cadres is required to be in terms of the provisions of the
F Presidential Order issued under Article 371D. The recruitment of teachers
is to be made for which district is a unit.
86. In Dr. C. Surekha v. Union of India, AIR 1989 SC 44, this
Court held that Article 371D does not militate against the basic structure
of the Constitution. Similar is the view taken in Dr. Fazal Ghafoor v.
G Union of India, AIR 1989 SC 48.
87. This Court in V. Jagannadha Rao and Ors. v. State of A.P.
and Ors., (2001) 10 SCC 401 held that Article 371D(1) of the Constitution
unequivocally indicates that the said article and any order made by the
President thereunder shall have effect notwithstanding anything in any
H other provision of the Constitution or any other law for the time being in
force. The Court observed:
CHEBROLU LEELA PRASAD RAO & ORS. v. 97
STATE OF A.P. & ORS. [ARUN MISHRA, J.]
“21. In Sadanandam case, 1989 Supp. (1) SCC 574, while A
considering the legality of amended provisions of the Rules framed
by the State Government and in sustaining the same, this Court
was of the opinion that as the aforesaid Rules had been framed
under Section (3) of the Andhra Pradesh Ordinance 5 of 1983
read with para 5(2)(a) of the Presidential Order, the conclusion
B
of the Tribunal in striking down the rule is erroneous. The Court
was of the opinion that mode of recruitment and category from
which the recruitment to a service should be made are policy
matters exclusively within the purview and domain of the executive
and it would not be appropriate for judicial bodies to sit in judgment
over the wisdom of the executive in choosing the mode of C
recruitment or the categories from which the recruitment should
be made. In our considered opinion, both the aforesaid reasons do
not constitute a true interpretation of the provisions of the
Presidential Order. At the outset, it may be noticed that Article
371-D(10) of the Constitution unequivocally indicates that
D
the said article and any order made by the President
thereunder shall have effect notwithstanding anything in any
other provision of the Constitution or in any other law for the
time being in force. Necessarily, therefore, if it is construed
and held that the Presidential Order prohibits consideration
of the employees from the feeder category from other units E
then such a rule made by the Governor under the proviso to
Article 309 of the Constitution will have to be struck down.
Then again in exercise of powers under para 5(2) of the Presidential
Order if the State Government makes any provision, which is
outside the purview of the authority of the Government under
F
para 5(2) of the Order itself, then the said provision also has to be
struck down. Having construed the Rules framed by the Governor
under proviso to Article 309 of the Constitution from the aforesaid
standpoint, the conclusion is irresistible that the said Rule to the
extent indicated by the Tribunal is constitutionally invalid and its
conclusion is unassailable. In the case in hand, the impugned G
provisions do not appear to have been framed in exercise of
powers under para 5(2) of the Presidential Order and as such
the same being a Rule made under proviso to Article 309 of
the Constitution, the Presidential Order would prevail, as
provided under Article 371-D(10) of the Constitution. Even if
H
98 SUPREME COURT REPORTS [2020] 6 S.C.R.
A it is construed to be an order made under para 5(2) of the
Presidential Order, then also the same would be invalid being
beyond the permissible limits provided under the said paragraph.
In this view of the matter, the Tribunal rightly held the provision to
the extent it provides for consideration of employees of the
Factories and Boilers Units to be invalid, for the purpose of
B
promotion to the higher post in the Labour Unit and as such we
see no justification for our interference with the said conclusion
of the Tribunal and the earlier judgment of this Court in
Sadanandam case, 1989 Supp. (1) SCC 574, must be held to
have not been correctly decided. As a consequence, so would be
C the case with Satyanarayana Rao case, (2000) 4 SCC 262.”
(emphasis supplied by us)
88. In S. Prakasha Rao and Anr. v. Commissioner of
Commercial Taxes and Ors., (1990) 2 SCC 259, this Court opined that
once the President makes an order under Article 371D(1) and (2), the
D State Government loses its inherent power to deal with matters relating
to services, it may exercise its powers on matters dealt with the
Presidential Order only in the manner specified in the order. This Court
observed:
“19. It is seen that the order was made pursuant to the power
E given to the President under Article 371-D, which is a special
provision made under the Constitution (Thirty-second Amendment)
Act, 1973 peculiar to the State of Andhra Pradesh due to historical
background. Therefore, the State Government have no inherent
power in creating a zone or organising local cadre within the zones
F except in accordance with the provisions made in the Andhra
Pradesh Public Employment (Organisation of Local Cadres and
Regulation for Direct Recruitment) Order. It is true that the clause
‘or constituted otherwise’ defined in paragraph 2(e) is of wide
import, but is only relatable to the power given by the President to
the State Government to organise local cadre. Paragraph 3(1) is
G the source of that power, but the exercise thereof is hedged with
a limitation of twelve months from the date of commencement of
the Order. Therefore, the power to organise class or classes of
post of civil services of, and class or classes of civil posts, under
the State into different local cadres should be exercised by the
H State Government in accordance with paragraph 3(1) before the
CHEBROLU LEELA PRASAD RAO & ORS. v. 99
STATE OF A.P. & ORS. [ARUN MISHRA, J.]
expiry of the twelve months from October 20, 1975. If the exercise A
of the power is not circumscribed within limitation, certainly under
General Clauses Act the power could be exercised from time to
time in organising local cadres to meet the administrative
exigencies. The prescription of limitation is a fetter put on the
exercise of power by the State Government. Obviously, realising
B
this reality and the need to organise local cadres, subsequent
thereto the amendment was made and was published in GOMs
No. 34 G.A. dated January 24, 1981 introducing proviso to
paragraph 3(1). Thereunder, notwithstanding the expiry of the said
period, the President alone has been given power to organise local
cadres in respect of class or classes of posts in civil services and C
class or classes of civil posts, under the State. That too subject to
the conditions precedent laid therein. Thus, it is the President and
the President alone who has been given power under proviso by
an order to require the State Government to organise the local
cadres in relation to any class or classes of posts in the civil services
D
of and class or classes of civil posts under the State into different
local cadres. It could be considered in yet another perspective.
Paragraph 2(e) indicates that President himself may create a local
cadre instead of requiring the State Government to organise local
cadre. For instance, paragraph 3(6) empowered the President
to create local cadre for the city of Hyderabad. Similarly, E
under proviso to paragraph 3(1) the President may require
the State Government to create a local cadre within a zone.
So the phrase ‘or constituted otherwise’ cannot be understood
de hors the scheme of the Presidential Order. No doubt in
common parlance, the word ‘otherwise’ is of ‘wide’ amplitude.
F
This Court in K.K. Kochuni v. States of Madras and Kerala,
AIR 1960 SC 1080, Subba Rao, J., as he then was, speaking per
majority in paragraph 50 while construing the word ‘otherwise’
held that it must be confined to things analogous to right or contract
such as lost grant, immemorial user etc. The word ‘otherwise’ in
the context only means whatever may be the origin of the receipt G
of maintenance. The ratio thereunder cannot be extended in the
contextual circumstances obtainable on the facts in this case.
Similarly, in Lilavati Bai v. State of Bombay, AIR 1957 SC 521,
Sinha J., as he then was, speaking for the Constitution Bench
interpreting Explanation (a) to Section 6 of Bombay Land
H
100 SUPREME COURT REPORTS [2020] 6 S.C.R.
A Requisition Act, 1948, as amended in 1950 and repelling the
application of ejusdem generis doctrine laid the law thus:
“The legislature has been cautious and thoroughgoing enough
to bar all avenues of escape by using the words ‘or otherwise’.
Those words are not words of limitation but of extension so as
B to cover all possible ways in which a vacancy may occur.
Generally speaking a tenant’s occupation of his premises ceases
when his tenancy is terminated by acts of parties or by operation
of law or by eviction by the landlord or by assignment or transfer
of the tenant’s interest. But the legislature, when it used the
words ‘or otherwise’, apparently intended to cover other cases
C which may not come within the meaning of the preceding
clauses, for example, a case where the tenant’s occupation
has ceased as a result of trespass by a third party. The
legislature, in our opinion, intended to cover all possible cases
of vacancy occurring due to any reasons whatsoever.”
D Thus, contextual interpretation to the words ‘or otherwise’ was
given by this Court. Therefore, the phrase ‘constituted otherwise’
is to be understood in that context and purpose which Article 371-
D and the Presidential Order seek to achieve. If the interpretation
given by the appellants is given acceptance it amounts to
E giving blanket power to the State Government to create local
cadres at its will tending to defeat the object of Article 371-D
and the Presidential Order. Accordingly, we have no hesitation
to reject the interpretation of wider connotation. The ratio in these
decisions does not render any assistance to the appellants.
F 20. Similarly, the power given to the State Government in sub-
paragraph (7) of paragraph 3 of the Order is only to organise a
separate cadre in respect of any category of posts in any
department when more than one cadre in respect of such category
exists in each department; so the State Government may organise
one cadre when more than one cadre in respect of different
G categories of posts exist in a zone under paragraph 3(1) of the
Order. It is clear when we see the language in paragraph 3(7)
which says that: “nothing in this order shall be deemed to prevent
the State from organising”. Take for instance while creating local
cadre co-terminus with the administrative control of the Deputy
H Commissioner, Commercial Taxes, local cadre for Senior
CHEBROLU LEELA PRASAD RAO & ORS. v. 101
STATE OF A.P. & ORS. [ARUN MISHRA, J.]
Assistants may be created. It is also made manifest by instructions A
7 and 9(e) of the instructions contained in GOMs No. 728 GAD
dated November 1, 1975. But, as stated earlier, it is only for the
purpose of administrative convenience, not for the purpose of
recruitment, seniority or promotion etc., as the case may be. Thus,
we have no hesitation to hold that the creation of a division and
B
maintaining separate seniority of Junior Assistants and Senior
Assistants for Adilabad and Warangal Divisions are illegal, contrary
to order issued in GOMs No. 581 and the Andhra Pradesh
Employment (Organisation of Local Cadre and Regulation of
Direct Recruitment) Order, 1975. The single member of the
Tribunal in R.P. No. 101 of 1982 dated April 1, 1982 did not consider C
the effect of the order in proper perspective and is illegal.”
(emphasis supplied by us)
No doubt about it that the provision to have overriding effect shall
have any nexus as to the subject matter of other provisions.
D
89. The main question to be considered is whether there is any
conflict between the Presidential Order and the G.O. Ms. No. 3 of
2000issued under the order of the Governor under Para 5(1) of the Fifth
Schedule of the Constitution. Considering the geographical disparity in
public employment, Article 371D was inserted in the Constitution,
providing candidates from certain districts/zones to form the local cadre E
for different posts for different parts of the States. The Presidential
Order was issued providing district/zone for local cadre, on the other
hand, the order issued by the Governor has reserved all the posts of
teachers in the Scheduled Areas for Schedule Tribe candidates. The
aspiring candidates of the district/zone in the Scheduled Area cannot F
apply for the post of teachers in the district as 100 per cent reservation
was made vide G.O.Ms. No. 3 of 2000 by the Governor. It is also not
disputed that aspiring candidates cannot apply outside the district/zone
because of the restrictions under Article 371D of the Constitution. As
there is 100 per cent reservation provided for the Scheduled Tribes in
the Scheduled Areas, other candidates of Scheduled Castes, General G
and Other Backward Classes category cannot apply at all in other districts.
They are being denied the opportunity of getting the employment as
against the posts in question. Thus, the order issued by the Governor is
clearly in conflict with the Presidential Order issued under Article 371D.
The candidates of local areas or other candidates except for Scheduled H
102 SUPREME COURT REPORTS [2020] 6 S.C.R.
A Tribes have been deprived of the opportunity of seeking public
employment because of the order issued by the Governor, and they cannot
apply outside the local area in view of the Presidential notification. The
Presidential notification intends that they have to apply within the district,
and the Governor’s notification takes away that right. Thus, there is a
clear repugnancy between the notification issued by the President and
B
that subsequent order issued by the Governor in the exercise of powers
under Para 5, Fifth Schedule of the Constitution. It is not possible to
harmonise both the notifications. Apart from that, there is total deprivation.
It is not factually correct that Presidential Order did not deal with
Scheduled Areas. The Presidential Order applied to the entire State and
C carved out a special provision that applies with a non-obstante clause.
90. The Governor is competent to issue an order which is not in
conflict with the Presidential Order. The Governor issued the order when
the Presidential Order was already in force in the entire State. The
Governor could not have issued the order in derogation to the Presidential
D Order. In our opinion, 100 per cent reservation could not have been
provided as that violates the Presidential Order.
In Re: Question No.2: whether 100% reservation is
permissible under the Constitution?
91. The Constitution has provided for justice – social, economic
E and political; liberty of thought, expression, belief, faith and worship;
equality of status and opportunity; and to promote among them all
fraternity assuring the dignity of the individual and the unity and integrity
of the Nation. The framers of the Constitution have taken great care
and deliberation so that it reflects the high purpose and noble objectives.
F It aims at the formation of an egalitarian order, free from exploitation,
the fundamental equality of humans and to provide support to the weaker
sections of the society and wherefrom there is a disparity to make them
equal by providing protective discrimination. The Constitution in the historic
perspective leans in favour of providing equality and those aims sought
to be achieved by the Constitution by giving special protection to the
G socially and economically backward classes by providing a protective
umbrella for their social emancipation and providing them equal justice,
ensuring the right of equality by providing helping hand to them by way
of reservation measures. Article 14 guarantees equality before the law
or the equal protection of the laws. Be it a matter of distribution of State
H largesse; the Government is obligated to follow the constitutionalism.
CHEBROLU LEELA PRASAD RAO & ORS. v. 103
STATE OF A.P. & ORS. [ARUN MISHRA, J.]
State action cannot be arbitrary and discriminatory and cannot be guided A
by extraneous considerations, which is opposed to equality. The concept
of equality is the antithesis of arbitrariness in action. There cannot be
any legislation in violation of equality, which violates the basic concept
of equality as enshrined in Part III of the Constitution. An administrative
order has to be tested on the anvil of non-arbitrariness. Any action of the
B
legislature, administrative or quasi-judicial, is open to challenge if it is in
conflict with the Constitution or the Act and applicable general principles
of law. The protective discrimination of persons residing in backward
areas is permissible, as held in M.P. Oil Extraction & Anr. v. State of
M.P. & Ors., (1997) 7 SCC 592. The industrial units were set up in
backward areas at the instance of the Government. Special treatment C
was given to them for the supply of sal seeds at a concessional rate of
royalty. It was held in the aforesaid decision that the distinction was
reasonable.
92. The concept of equality cannot be pressed to commit another
wrong. The concept of equality enshrined in Article 14 of the Constitution D
is a positive concept. It is not a concept of negative equality. It cannot be
used to perpetuate an illegality. Equity cannot be applied when it arises
out of illegality. The doctrine of equity would not be attracted when the
benefits were conferred on the basis of illegality, as held in Usha Mehta
v. Government of Andhra Pradesh, (2012) 12 SCC 419; John
Vallamattom v. Union of India, (2003) 6 SCC 611; General Manager, E
Uttranchal Jal Sansthan v. Laxmi Devi, (2009) 7 SCC 205, State of
West Bengal v. Debashish Mukherjee, AIR 2011 SC 3667.
93. Article 14 is to be understood in the light of the Directive
Principles, as observed in Indra Sawhney (supra). The classification
made cannot be unreasonable. It can be based on a reasonable basis. It F
cannot be arbitrary but must be rational. It should be based on intelligible
differentia and must have rational nexus to the object sought to be
achieved. There are various fields in which Article 14 has extended its
reach and ambit. The provision is very deep and pervasive. It kills the
evil of discrimination to bring equality. G
94. Article 15 of the Constitution prohibits discrimination based on
religion, race, caste, sex, or place of birth. Article 15(4) provides that the
State can make any special provision for the advancement of socially
and economically backward classes or scheduled castes and scheduled
tribes. Similarly, Article 15(5) enables the State to make special provisions H
104 SUPREME COURT REPORTS [2020] 6 S.C.R.
A for educationally backward classes, Scheduled Castes, and Scheduled
Tribes for admission to educational institutions, including private
educational institutions, whether aided or unaided by the State. Article
15(6) enables the State Government to make any special provision for
the advancement of economically weaker sections of citizens other than
the classes mentioned in Article 15(4) and 15(5). The State can also
B
make a provision under Article 15(6)(b) for the advancement of
economically weaker sections of the citizens relating to their admission
to educational institutions, including private educational institutions,
whether aided or unaided except for the minority educational institutions.
The State has the power to notify economically weaker sections from
C time to time based on family income and other indicators of economic
disadvantage.
95. Article 16 deals with equality of opportunity in matters of public
employment, which ensures equality of opportunity for all citizens in
matters relating to employment or appointment to any office under the
D State. Article 16(2) provides that no citizen shall be discriminated on the
grounds of religion, race, caste, sex, descent, place of birth, residences
or any of them and be ineligible for, or discriminated against in respect of
any employment or office under the State. Article 16(3) enables the
Parliament to make law regarding a class or classes of employment or
appointment to an office providing for any requirement as to residence
E within that State or Union Territory before such employment or
appointment. Under Article 16(4), State can provide reservation in
appointments or posts in favour of any backward class of citizens which,
in its opinion, is not adequately represented in services under State.
Directive Principles of State Policy enjoin a duty upon the State to secure
F a social order for the promotion and welfare of the people, to promote
justice – social, economic, and political; and all institutions of the national
life have to endeavour furtherance of the above-avowed purposes. The
State has to strive to minimise inequalities of income, eliminate the status
of opportunities not only amongst individuals but also groups of people
engaged in different areas, and engaged in different professions. Article
G 39(b) and (c) aim at the distribution of State largesse and control of the
material resources of the community as best to sub-serve the common
good, and that the operation of the economic system does not result in
the concentration of wealth and means of production to the collective
detriment. Article 47 of the Constitution deals with the duty of the State
H to raise the level of nutrition and the standard of living and to improve
CHEBROLU LEELA PRASAD RAO & ORS. v. 105
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public health. Article 51A (a) to (k) contains the fundamental duties, and A
every citizen of India must promote harmony and the spirit of common
brotherhood amongst all the people of India transcending religious,
linguistic and regional or sectional diversities; to renounce practices
derogatory to the dignity of women. Article 51A(j) confers a duty to
strive towards in all spheres of individual and collective activity so that
B
the nation steadily rises to higher levels of endeavours and achievement.
Article 51A has been used as an interpretative tool where the
constitutionality of an Act is challenged. The Court considered the duties
in Mohan Kumar Singhania &Ors. v. Union of India & Ors., 1992
Supp. (1) SCC 594 thus:
“41. In this regard, it will be worthwhile to refer to Article 51-A C
in Part IV-A under the caption ‘Fundamental Duties’ added by
the Constitution (Forty-second Amendment) Act, 1976, in
accordance with the recommendations of the Swaran Singh
Committee. The said article contains a mandate of the Constitution
that it shall be the duty of every citizen of India to do the various D
things specified in clauses (a) to (j) of which clause (j) commands
that it is the duty of every citizen of India to strive towards
excellence in all spheres of individual and collective activity so
that the nation constantly rises to higher levels of endeavour and
achievement.
E
42. In our view, the effort taken by the government in giving
utmost importance to the training programme of the selectees so
that this higher civil service being the topmost service of the country
is not wasted and does not become fruitless during the training
period is in consonance with the provisions of Article 51-A(j).”
F
96. The Constitution of India contains special provisions for
scheduled castes and scheduled tribes in Part XVI. Article 330 provides
for reservation of seats for scheduled castes and scheduled tribes in the
House of the People. Article 332 provides for “reservation of seats” for
scheduled castes and scheduled tribes in the legislative assemblies of
the States. Article 334 provides for “reservation of seats” and special G
representation to “cease after a certain period.” The provision was made
initially for a lesser period. After that, it was extended for 20 years,
30 years, 40 years, 50 years, 60 years, and now enhanced to 70 years by
amendment made in 2019. Article 335 provides that claims of the members
of the scheduled castes and the scheduled tribes, for maintenance of H
106 SUPREME COURT REPORTS [2020] 6 S.C.R.
A efficiency of administration, in the making of appointments to services
and posts in connection with the affairs of the Union or a State; and
State can relax criteria in qualifying marks in any examination or lower
standards of evaluation, for reservation in matters of promotion to any
class or classes of services or posts in connection with the affairs of the
Union or a State.
B
97. Article 338 provides for constitution of National Commission
for Scheduled Castes to investigate and monitor all matters relating to
the safeguards provided for the scheduled castes and to evaluate the
working of such safeguards; to inquire into specific complaints concerning
the deprivation of rights and safeguards of the scheduled castes; to
C participate and advise on the planning process of socio-economic
development of the scheduled castes and to evaluate the progress of
their development under the Union and any State; to present to the
President, annually and at such other times as the Commission may
deem fit, reports upon the working of those safeguards are provided in
D Article 338(5)(d). Article 338(6) requires that the President shall cause
all such reports to be laid before each House of Parliament and a
memorandum explaining action taken or proposed to be taken on
recommendations relating to the Union and the reasons for non-
acceptance, if any, of any of such recommendations. A copy of the
report has to be forwarded to the Governor to be dealt with in terms of
E Article 338(7). The Commission has the power of inquiring into any
complaint as specified in Article 338(8), and Article 338A provides for
the constitution of a National Commission for Scheduled Tribes. Similar
provisions are contained for National Commission for Scheduled Tribes
in Article 338A. Article 339 envisages control of the Union over the
F administration of scheduled areas and the welfare of the scheduled tribes.
Article 340 deals with the appointment of a Commission to investigate
the conditions of backward classes.
98. Under Article 341 the President concerning any State or Union
territory, may specify the castes, races or tribes or parts of or groups
G within castes, races or tribes which shall for the Constitution, be deemed
to be scheduled castes in relation to that State or Union territory, as the
case may be. Article 341(2) confers power on the Parliament to include
in or exclude from the list of scheduled castes specified in a notification
issued under Article 342(1) any caste, race or tribe or part of or group
within any caste, race or tribe, and any subsequent notification shall not
H
CHEBROLU LEELA PRASAD RAO & ORS. v. 107
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vary the same. Power can be exercised only once. Article 342 contains A
a provision in respect of scheduled tribes. The President may, by
notification specify the tribe or tribal communities or parts of or groups
within tribes or tribal communities which shall for the Constitution, be
deemed to be scheduled tribes in relation to that State or the Union
territory, as the case may be. The Parliament may include in or exclude
B
from the list of scheduled tribes, any tribe or tribal community or part of
or group within any tribe or tribal community, but save as aforesaid, any
subsequent notification shall not vary a notification issued under the said
clause. Thus, the power to vary can be exercised only once. A similar
provision has been added in Article 342A concerning socially and
educationally backward classes. C
99. Article 243T deals with reservation of seats for scheduled
castes and scheduled tribes in every municipality in proportion to the
population of the scheduled castes or scheduled tribes in the municipal
area to the total population of that area and provides for rotation of
seats. Article 243D provides for reservation of seats for scheduled castes D
and scheduled tribes in every Panchayat, and Panchayat is constituted
in every State, Panchayat at the village, intermediate and district levels
as provided in Article 243B. It is mandatory to constitute such Panchayat
at the district level in a State having a population exceeding 20 lakhs.
100. Article 244, with which we are concerned in the present E
matter, provides for the administration of scheduled areas and tribal areas.
The Constitution is spatially it provides Scheduled Areas under Article
244, Schedule V, Schedule VI, and special provisions have been made
concerning various States under Articles 370, 371A to 371J. For better
administration, the Constitution has divided India into States and Union
Territories as per Articles 3 and 4. F
101. Concerning classification in a constitutional dispensation for
scheduled castes and scheduled tribes, Dr. Ambedkar’s speech in the
Constituent Assembly Debates, page 979, 11th at pages 979-80 is referred
to by Dr. Dhawan. Same is extracted hereunder:
G
“We must begin by acknowledging the fact that there is a complete
absence of two things in Indian Society. One of these is equality.
On the social plane, we have in India a society based on the
principle of graded inequality, which means elevation for some
and degradation for others. On the economic plane, we have a
society in which there are some who have immense wealth as H
108 SUPREME COURT REPORTS [2020] 6 S.C.R.
A against many who live in abject poverty. On the 26th of January,
we are going to enter into a life of contradictions. In politics, we
will have equality and in social and economic life we will have
inequality. In politics we will be recognizing the principle of one
man one vote one value. In our social and economic life we shall,
by reason of our social and economic structure, continue to defy
B
the principle of one man one vote one value. How long shall we
continue to live this life of contradictions? How long shall we
continue to deny equality in our social and economic life? If we
continue to deny it for long, we shall do so by putting out political
democracy in peril. We must remove this contradiction at the
C earliest possible moment or else those suffer from inequality will
blow up the structure of political democracy which this Assembly
has so laboriously built up.
The second thing we are wanting in is recognition of the
principle of fraternity. What does fraternity mean? Fraternity
D means a sense of common brotherhood of all Indians - if Indians
think of themselves as being one people. It is the principle which
gives unity and solidarity to social life… The sooner we realize
that we are not as yet a nation and seriously think of ways and
means of realizing this goal, the better for us….. For fraternity
can be a fact, only where there is a nation. Without fraternity,
E equality and liberty will be no deeper than a coat of paint.”
102. The scheduled castes and scheduled tribes have been provided
with special measures to make them equal to the others. Efforts have
been made to protect their land and property by enacting various laws.
Special provisions have also been carved out to preserve their human
F dignity with respect, in the shape of trusts in Scheduled Castes and
Scheduled Tribes (Prevention of Atrocities) Act, 1989. The scheduled
castes and scheduled tribes were making a struggle for freedom and
various rights in the country. They suffered discrimination; fruits of
development have not percolated down to them. They remained an
G unequal and vulnerable section of the society and treated for centuries
as outcasts socially. That is the basis for providing them reservation and
special treatment to provide them upliftment and to eradicate their
sufferings. We have not been able to eradicate untouchability in the real
sense so far and to provide safety and security to downtrodden class
and to ensure that their rights are preserved and protected, and they
H equally enjoy frugal comforts of life.
CHEBROLU LEELA PRASAD RAO & ORS. v. 109
STATE OF A.P. & ORS. [ARUN MISHRA, J.]
103. Concerning tribals, we see that there are several schemes A
for their upliftment, but we still see that at certain places, they are still
kept in isolation and are not even able to get basic amenities, education,
and frugal comforts of life. These classes have an equal right to life
vailable to all human beings. Considering the social backwardness, which
includes economic aspects also, these are the classes that have suffered
B
historic disabilities arising from discrimination, poverty, educational
backwardness to provide them empowerment and to make them part of
the mainstream. Special provisions have been carved out in the
Constitution. Article 16(4) is not an exception to Article 16(1) being part
of equality. The reservation can be rectified. Section 16(4) aims at group
backwardness. Reservations are provided due to discrimination and C
disadvantages suffered by the backward classes, scheduled castes and
scheduled tribes for sharing the State power.
104. The concept of sharing State power was considered in Indra
Sawhney (supra). Sawant, J., in his opinion, dealt with the idea of sharing
of State power thus: D
“483. That only economic backwardness was not in the
contemplation of the Constitution is made further clear by the
fact that at the time of the First Amendment to the Constitution
which added clause (4) to Article 15 of the Constitution, one of
the Members, Prof. K.T. Shah wanted the elimination of the word E
“classes” in and the addition of the word “economically” to the
qualifiers of the term “backward classes”. This Amendment was
not accepted. Prime Minister Nehru himself stated that the addition
of the word “economically” would put the language of the article
at variance with that of Article 340. He added that “socially” is
a much wider term including many things and certainly F
including “economically”. This shows that economic
consideration alone as the basis of backwardness was not only
not intended but positively discarded.”
(emphasis supplied)
G
Justice Jeevan Reddy dealt with the same, thus:
“694. The above material makes it amply clear that the objective
behind clause (4) of Article 16 was the sharing of State power.
The State power which was almost exclusively monopolised by
the upper castes i.e., a few communities, was now sought to be
H
110 SUPREME COURT REPORTS [2020] 6 S.C.R.
A made broad-based. The backward communities who were till then
kept out of apparatus of power, were sought to be inducted thereinto
and since that was not practicable in the normal course, a special
provision was made to effectuate the said objective. In short,
the objective behind Article 16(4) is empowerment of the
deprived backward communities — to give them a share in
B
the administrative apparatus and in the governance of the
community.
750. Dr Rajeev Dhavan, learned counsel appearing for
Srinarayana Dharma Paripalana Yogam (an association of Ezhavas
in Kerala) submitted that Articles 16(4) and 15(4) occupy different
C fields and serve different purposes. Whereas Article 15(4)
contemplates positive action programmes, Article 16(4) enables
the State to undertake schemes of positive discrimination. For
this reason, the class of intended beneficiaries under both the
clauses is different. The social and educational backwardness
D which is the basis of identifying backwardness under Article 15(4)
is only partly true in the case of ‘backward class of citizens’ in
Article 16(4). The expression “any backward class of citizens”
occurring in Article 16(4) must be understood in the light of the
purpose of the said clause namely, empowerment of those groups
and classes which have been kept out of the administration —
E classes which have suffered historic disabilities arising from
discrimination or disadvantage or both and who must now be
provided entry into the administrative apparatus. In the light of
the fact that the Scheduled Castes and Scheduled Tribes were
also intended to be beneficiaries of Article 16(4) there is no reason
F why caste cannot be an exclusive criterion for determining
beneficiaries under Article 16(4). Counsel emphasised the fact
that Article 16(4) speaks of group protection and not individual
protection.
788. Further, if one keeps in mind the context in which Article
G 16(4) was enacted it would be clear that the accent was upon
social backwardness. It goes without saying that in the Indian
context, social backwardness leads to educational backwardness
and both of them together lead to poverty — which in turn breeds
and perpetuates the social and educational backwardness. They
feed upon each other constituting a vicious circle. It is a well-
H
CHEBROLU LEELA PRASAD RAO & ORS. v. 111
STATE OF A.P. & ORS. [ARUN MISHRA, J.]
known fact that till independence the administrative apparatus A
was manned almost exclusively by members of the ‘upper’ castes.
The Shudras, the Scheduled Castes and the Scheduled Tribes and
other similar backward social groups among Muslims and
Christians had practically no entry into the administrative apparatus.
It was this imbalance which was sought to be redressed by
B
providing for reservations in favour of such backward classes. In
this sense Dr Rajeev Dhavan may be right when he says that the
object of Article 16(4) was “empowerment” of the backward
classes. The idea was to enable them to share the state power.
We are, accordingly, of the opinion that the backwardness
contemplated by Article 16(4) is mainly social backwardness. It C
would not be correct to say that the backwardness under Article
16(4) should be both social and educational. The Scheduled Tribes
and the Scheduled Castes are without a doubt backward for the
purposes of the clause; no one has suggested that they should
satisfy the test of social and educational backwardness. It is
D
necessary to state at this stage that the Mandal Commission
appointed under Article 340 was concerned only with the socially
and educationally backward classes contemplated by the said
article. Even so, it is evident that social backwardness has been
given precedence over others by the Mandal Commission — 12
out of 22 total points. Social backwardness — it may be reiterated E
— leads to educational and economic backwardness. No objection
can be, nor is taken, to the validity and relevancy of the criteria
adopted by the Mandal Commission. For a proper appreciation of
the criteria adopted by the Mandal Commission and the difficulties
in the way of evolving the criteria of backwardness, one must
F
read closely Chapters III and XI of Volume I along with
Appendixes XII and XXI in Volume II. Appendix XII is the Report
of the Research Planning Team of the Sociologists while Appendix
XXI is the ‘Final List of Tables’ adopted in the course of socio-
educational survey. In particular, one may read paras 11.18 to
11.22 in Chapter XI, which are quoted hereunder for ready G
reference:
“11.18. Technical Committee constituted a Sub-Committee
of Experts (Appendix-20, Volume II) to help the Commission
prepare ‘Indicators of Backwardness’ for analysing data contained
in computerised tables. After a series of meetings and a lot of H
112 SUPREME COURT REPORTS [2020] 6 S.C.R.
A testing of proposed indicators against the tabulated data, the
number of tables actually required for the Commission’s work
was reduced to 31 (Appendix-21, Volume II). The formulation
and refinement of indicators involved testing and validation checks
at every stage.
B 11.19. In this connection, it may be useful to point out that
in social sciences no mathematical formulae or precise bench-
marks are available for determining various social traits. A survey
of the above type has to tread warily on unfamiliar ground and
evolve its own norms and bench-marks. This exercise was full of
hidden pitfalls and two simple examples are given below to illustrate
C this point.
11.20. In Balaji case the Supreme Court held that if a
particular community is to be treated as educationally backward,
the divergence between its educational level and that of the State
average should not be marginal but substantial. The Court
D considered 50% divergence to be satisfactory. Now, 80% of the
population of Bihar (1971 Census) is illiterate. To beat this
percentage figure by a margin of 50% will mean that 120%
members of a caste/class should be illiterates. In fact it will be
seen that in this case even 25% divergence will stretch us to the
E maximum saturation point of 100%.
11.21. In the Indian situation where vast majority of the
people are illiterate, poor or backward, one has to be very careful
in setting deviations from the norms as, in our conditions, norms
themselves are very low. For example, Per Capita Consumer
F Expenditure for 1977-78 at current prices was Rs 991 per annum.
For the same period, the poverty line for urban areas was at Rs
900 per annum and for rural areas at Rs 780. It will be seen that
this poverty line is quite close to the Per Capita Consumer
Expenditure of an average Indian. Now following the dictum of
Balaji case, if 50% deviation from this average Per Capita
G Consumer Expenditure was to be accepted to identify
‘economically backward’ classes, their income level will have to
be 50% below the Per Capita Consumer Expenditure i.e. less
than Rs 495.5 per year. This figure is so much below the poverty
line both in urban and rural areas that most of the people may die
H of starvation before they qualify for such a distinction.
CHEBROLU LEELA PRASAD RAO & ORS. v. 113
STATE OF A.P. & ORS. [ARUN MISHRA, J.]
11.22. In view of the above, ‘Indicators for Backwardness’ A
were tested against various cut-off points. For doing so, about a
dozen castes well-known for their social and educational
backwardness were selected from amongst the castes covered
by our survey in a particular State. These were treated as ‘Control’
and validation checks were carried out by testing them against
B
‘Indicators’ at various cut-off points. For instance, one of the
‘Indicators’ for social backwardness is the rate of student drop-
outs in the age group 5-15 years as compared to the State average.
As a result of the above tests, it was seen that in educationally
backward castes this rate is at least 25% above the State average.
Further, it was also noticed that this deviation of 25% from the C
State average in the case of most of the ‘Indicators’ gave
satisfactory results. In view of this, wherever an ‘Indicator’ was
based on deviation from the State average, it was fixed at 25%,
because a deviation of 50% was seen to give wholly unsatisfactory
results and, at times, to create anomalous situations.”
D
(emphasis supplied by us)
(a). In Indra Sawhney (supra), the Court held that reservation is
not a proportionate representation but adequate, thus:
807. We must, however, point out that clause (4) speaks of
adequate representation and not proportionate representation. E
Adequate representation cannot be read as proportionate
representation. Principle of proportionate representation is
accepted only in Articles 330 and 332 of the Constitution and that
too for a limited period. These articles speak of reservation of
seats in Lok Sabha and the State legislatures in favour of Scheduled F
Tribes and Scheduled Castes proportionate to their population,
but they are only temporary and special provisions. It is therefore
not possible to accept the theory of proportionate representation
though the proportion of population of backward classes to the
total population would certainly be relevant. Just as every power
must be exercised reasonably and fairly, the power conferred by G
clause (4) of Article 16 should also be exercised in a fair manner
and within reasonable limits — and what is more reasonable than
to say that reservation under clause (4) shall not exceed 50% of
the appointments or posts, barring certain extraordinary situations
as explained hereinafter. From this point of view, the 27% H
114 SUPREME COURT REPORTS [2020] 6 S.C.R.
A reservation provided by the impugned Memorandums in favour
of backward classes is well within the reasonable limits. Together
with reservation in favour of Scheduled Castes and Scheduled
Tribes, it comes to a total of 49.5%. In this connection, reference
may be had to the Full Bench decision of the Andhra Pradesh
High Court in V. Narayana Rao v. State of A.P., striking down
B
the enhancement of reservation from 25% to 44% for OBCs.
The said enhancement had the effect of taking the total reservation
under Article 16(4) to 65%.
(b). The expression ‘socially backward’ holds the key to define
backward as held in Indra Sawhney (supra):
C
“774. In our opinion too, the words “class of citizens — not
adequately represented in the services under the State” would
have been a vague and uncertain description. By adding the word
“backward” and by the speeches of Dr Ambedkar and Shri K.M.
Munshi, it was made clear that the “class of citizens … not
D adequately represented in the services under the State” meant
only those classes of citizens who were not so represented on
account of their social backwardness.”
(c). In Indra Sawhney (supra), the Court further laid down that
reservation are not anti-meritarian. Following is the relevant discussion:
E
“832. In Balaji and other cases, it was assumed that reservations
are necessarily anti-meritarian. For example, in Janki Prasad
Parimoo, it was observed, “it is implicit in the idea of reservation
that a less meritorious person be preferred to another who is more
meritorious.” To the same effect is the opinion of Khanna, J in
F Thomas, though it is a minority opinion. Even Subba Rao, J, who
did not agree with this view, did recognize some force in it. In his
dissenting opinion in Devadasan while holding that there is no
conflict between Article 16(4) and Article 335, he did say, “it is
inevitable in the nature of reservation that there will be a lowering
G of standards to some extent,” but, he said, on that account, the
provision cannot be said to be bad, inasmuch as in that case, the
State had, as a matter of fact, prescribed minimum qualifications,
and only those possessing such minimum qualifications were
appointed. This view was, however, not accepted by Krishna Iyer,
J in Thomas. He said: (SCC p. 366, para 132)
H
CHEBROLU LEELA PRASAD RAO & ORS. v. 115
STATE OF A.P. & ORS. [ARUN MISHRA, J.]
“[E]fficiency means, in terms of good government, not marks A
in examinations only, but responsible and responsive service to
the people. A chaotic genius is a grave danger in public
administration. The inputs of efficiency include a sense of belonging
and of accountability which springs in the bosom of the bureaucracy
(not pejoratively used) if its composition takes in also the weaker
B
segments of ‘We, the people of India’. No other understanding
can reconcile the claim of the radical present and the hangover of
the unjust past.”
833. A similar view was expressed in Vasanth Kumar by
Chinnappa Reddy, J. The learned Judge said (SCC p. 739, para
36) C
“[T]he mere securing of high marks at an examination may
not necessarily mark out a good administrator. An efficient
administrator, one takes it, must be one who possesses among
other qualities the capacity to understand with sympathy and,
therefore, to tackle bravely the problems of a large segment of D
population constituting the weaker sections of the people. And,
who better than the ones belonging to those very sections? Why
not ask ourselves why 35 years after Independence, the position
of the Scheduled Castes, etc. has not greatly improved? Is it not a
legitimate question to ask whether things might have been E
different, had the District Administrators and the State and Central
Bureaucrats been drawn in larger numbers from these classes?
Courts are not equipped to answer these questions, but the courts
may not interfere with the honest endeavours of the Government
to find answers and solutions. We do not mean to say that
efficiency in the civil service is unnecessary or that it is a F
myth. All that we mean to say is that one need not make a
fastidious fetish of it.”
834. It is submitted by the learned counsel for petitioners that
reservation necessarily means appointment of less meritorious
persons, which in turn leads to lowering of efficiency of G
administration. The submission, therefore, is that reservation should
be confined to a small minority of appointments/posts, — in any
event, to not more than 30%, the figure referred to in the speech
of Dr Ambedkar in the Constituent Assembly. The mandate of
Article 335, it is argued, implies that reservations should be so H
116 SUPREME COURT REPORTS [2020] 6 S.C.R.
A operated as not to affect the efficiency of administration. Even
Article 16 and the directive of Article 46, it is said, should be read
subject to the aforesaid mandate of Article 335.
835. The respondents, on the other hand, contend that the marks
obtained at the examination/test/interview at the stage of entry
B into service is not an indicium of the inherent merit of a candidate.
They rely upon the opinion of Douglas, J in DeFunis where the
learned Judge illustrates the said aspect by giving the example of
a candidate coming from disadvantaged sections of society and
yet obtaining reasonably good scores — thus manifesting his
“promise and potential” — vis-a-vis a candidate from a higher
C strata obtaining higher scores. (His opinion is referred to in para
716.) On account of the disadvantages suffered by them and the
lack of opportunities, — the respondents say — members of
backward classes of citizens may not score equally with the
members of socially advanced classes at the inception but in course
D of time, they would. It would be fallacious to presume that nature
has endowed intelligence only to the members of the forward
classes. It is to be found everywhere. It only requires an opportunity
to prove itself. The directive in Article 46 must be understood and
implemented keeping in view these aspects, say the respondents.
E 836. We do not think it necessary to express ourselves at any
length on the correctness or otherwise of the opposing points of
view referred to above. (It is, however, necessary to point out
that the mandate — if it can be called that — of Article 335 is to
take the claims of members of SC/ST into consideration, consistent
with the maintenance of efficiency of administration. It would be
F a misreading of the article to say that the mandate is maintenance
of efficiency of administration.) Maybe, efficiency, competence
and merit are not synonymous concepts; maybe, it is wrong to
treat merit as synonymous with efficiency in administration and
that merit is but a component of the efficiency of an administrator.
G Even so, the relevance and significance of merit at the stage of
initial recruitment cannot be ignored. It cannot also be ignored
that the very idea of reservation implies selection of a less
meritorious person. At the same time, we recognise that this
much cost has to be paid, if the constitutional promise of social
justice is to be redeemed. We also firmly believe that given an
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CHEBROLU LEELA PRASAD RAO & ORS. v. 117
STATE OF A.P. & ORS. [ARUN MISHRA, J.]
opportunity, members of these classes are bound to overcome A
their initial disadvantages and would compete with — and may, in
some cases, excel — members of open competition. It is
undeniable that nature has endowed merit upon members of
backward classes as much as it has endowed upon members of
other classes and that what is required is an opportunity to prove
B
it. It may not, therefore, be said that reservations are anti-
meritarian. Merit there is even among the reserved candidates
and the small difference, that may be allowed at the stage of
initial recruitment is bound to disappear in course of time. These
members too will compete with and improve their efficiency along
with others. C
837. Having said this, we must append a note of clarification. In
some cases arising under Article 15, this Court has upheld the
removal of minimum qualifying marks, in the case of Scheduled
Caste/Scheduled Tribe candidates, in the matter of admission to
medical courses. For example, in State of M.P. v. Nivedita Jain D
admission to medical course was regulated by an entrance test
(called Pre-Medical Test). For general candidates, the minimum
qualifying marks were 50% in the aggregate and 33% in each
subject. For Scheduled Caste/Scheduled Tribe candidates,
however, it was 40% and 30% respectively. On finding that
Scheduled Caste/Scheduled Tribe candidates equal to the number E
of the seats reserved for them did not qualify on the above standard,
the Government did away with the said minimum standard
altogether. The Government’s action was challenged in this Court
but was upheld. Since it was a case under Article 15, Article 335
had no relevance and was not applied. But in the case of Article F
16, Article 335 would be relevant and any order on the lines of the
order of the Government of Madhya Pradesh (in Nivedita Jain)
would not be permissible, being inconsistent with the efficiency of
administration. To wit, in the matter of appointment of Medical
Officers, the Government or the Public Service Commission cannot
say that there shall be no minimum qualifying marks for Scheduled G
Caste/Scheduled Tribe candidates, while prescribing a minimum
for others. It may be permissible for the Government to prescribe
a reasonably lower standard for Scheduled Castes/Scheduled
Tribes/Backward Classes — consistent with the requirements of
efficiency of administration — it would not be permissible not to H
118 SUPREME COURT REPORTS [2020] 6 S.C.R.
A prescribe any such minimum standard at all. While prescribing
the lower minimum standard for reserved category, the nature
of duties attached to the post and the interest of the general
public should also be kept in mind.
838. While on Article 335, we are of the opinion that there
B are certain services and positions where either on account of the
nature of duties attached to them or the level (in the hierarchy) at
which they obtain, merit as explained hereinabove, alone counts.
In such situations, it may not be advisable to provide for
reservations. For example, technical posts in research and
development organisations/departments/institutions, in specialities
C and super-specialities in medicine, engineering and other such
courses in physical sciences and mathematics, in defence services
and in the establishments connected therewith. Similarly, in the
case of posts at the higher echelons e.g., Professors (in
Education), Pilots in Indian Airlines and Air India, Scientists
D and Technicians in nuclear and space application, provision
for reservation would not be advisable.”
(emphasis supplied by us)
This Court observed that some relaxation has to be granted
consistent with the requirement of administration, to do social justice, it
E would not be permissible not to prescribe any minimum standard at all.
This Court also observed that as to specialty in technical posts and
research development, medical engineering, defence services, physics,
and mathematics, provision for reservation would not be advisable.
(d). In Indra Sawhney (supra), the Court held that reservation
F could be provided by executive order, thus:
“735. Shri K.K. Venugopal learned counsel for the petitioner in
writ petition No. 930 of 1990 submits that the “provision”
contemplated by clause (4) of Article 16 can be made only by and
should necessarily be made by the legislative wing of the State
G and not by the executive or any other authority. He disputes the
correctness of the holding in Balaji negativing an identical
contention. He submits that since the provision made under Article
16(4) affects the fundamental rights of other citizens, such a
provision can be made only by the Parliament/Legislature. He
submits that if the power of making the “provision” is given to the
H
CHEBROLU LEELA PRASAD RAO & ORS. v. 119
STATE OF A.P. & ORS. [ARUN MISHRA, J.]
executive, it will give room for any amount of abuse. According A
to the learned counsel, the political executive, owing to the
degeneration of the electoral process, normally acts out of political
and electoral compulsions, for which reason it may not act fairly
and independently. If, on the other hand, the provision is to be
made by the legislative wing of the State, it will not only provide
B
an opportunity for debate and discussion in the legislature where
several shades of opinion are represented but a balanced and
unbiased decision free from the allurements of electoral gains is
more likely to emerge from such a deliberating body. Shri
Venugopal cites the example of Tamil Nadu where, according
to him, before every general election a few communities are C
added to the list of backward classes, only with a view to
winning them over to the ruling party. We are not concerned
with the aspect of what is ideal or desirable but with what is
the proper meaning to be ascribed to the expression ‘provision’
in Article 16(4) having regard to the context. The use of the
D
expression ‘provision’ in clause (4) of Article 16 appears to us to
be not without design. According to the definition of ‘State’ in
Article 12, it includes not merely the Government and Parliament
of India and Government and Legislature of each of the States
but all local authorities and other authorities within the territory of
India or under the control of the Government of India which means E
that such a measure of reservation can be provided not only in the
matter of services under the Central and State Governments but
also in the services of local and other authorities referred to in
Article 12. The expression ‘Local Authority’ is defined in Section
3(31) of the General Clauses Act. It takes in all municipalities,
F
Panchayats and other similar bodies. The expression ‘other
authorities’ has received extensive attention from the court. It
includes all statutory authorities and other agencies and
instrumentalities of the State Government/Central Government.
Now, would it be reasonable, possible or practicable to say that
the Parliament or the Legislature of the State should provide for G
reservation of posts/appointments in the services of all such bodies
besides providing for in respect of services under the Central/
State Government? This aspect would become clearer if we notice
the definition of “Law” in Article 13(3)(a). It reads:
H
120 SUPREME COURT REPORTS [2020] 6 S.C.R.
A “13(3) In this article, unless the context otherwise requires,—
(a) “law” includes any Ordinance, order, bye-law, rule, regulation,
notification, custom or usage having in the territory of India the
force of law; …”
736. The words “order”, “bye-law”, “rule” and “regulation” in
B this definition are significant. Reading the definition of “State” in
Article 12 and of “law” in Article 13(3)(a), it becomes clear that
a measure of the nature contemplated by Article 16(4) can be
provided not only by the Parliament/Legislature but also by the
executive in respect of Central/State services and by the local
C bodies and “other authorities” contemplated by Article 12, in respect
of their respective services. Some of the local bodies and some of
the statutory corporations like universities may have their own
legislative wings. In such a situation, it would be unreasonable
and inappropriate to insist that reservation in all these services
should be provided by Parliament/Legislature. The situation and
D circumstances of each of these bodies may vary. The rule
regarding reservation has to be framed to suit the particular
situations. All this cannot reasonably be done by Parliament/
Legislature.
737. Even textually speaking, the contention cannot be accepted.
E The very use of the word “provision” in Article 16(4) is significant.
Whereas clauses (3) and (5) of Article 16 — and clauses (2) to
(6) of Article 19 — use the word “law”, Article 16(4) uses the
world “provision”. Regulation of service conditions by orders and
rules made by the executive was a well-known feature at the
F time of the framing of the Constitution. Probably for this reason, a
deliberate departure has been made in the case of clause (4).
Accordingly, we hold, agreeing with Balaji, that the
“provision” contemplated by Article 16(4) can also be made
by the executive wing of the Union or of the State, as the case
may be, as has been done in the present case.Balaji has been
G followed recently in Comptroller and Auditor-General of India
v. Mohan Lal Mehrotra. With respect to the argument of abuse
of power by the political executive, we may say that there is
adequate safeguard against misuse by the political executive of
the power under Article 16(4) in the provision itself. Any
H determination of backwardness is not a subjective exercise nor a
CHEBROLU LEELA PRASAD RAO & ORS. v. 121
STATE OF A.P. & ORS. [ARUN MISHRA, J.]
matter of subjective satisfaction. As held herein — as also by A
earlier judgments — the exercise is an objective one. Certain
objective social and other criteria have to be satisfied before any
group or class of citizens could be treated as backward. If the
executive includes, for collateral reasons, groups or classes not
satisfying the relevant criteria, it would be a clear case of fraud
B
on power.
Question 1(b):
Whether an executive order making a ‘provision’ under Article
16(4) is enforceable forthwith?
738. A question is raised whether an executive order made in C
terms of Article 16(4) is effective and enforceable by itself or
whether it is necessary that the said “provision” is enacted into a
law made by the appropriate legislature under Article 309 or is
incorporated into and issued as a Rule by the President/Governor
under the proviso to Article 309 for it to become enforceable? Mr D
Ram Jethmalani submits that Article 16(4) is merely declaratory
in nature, that it is an enabling provision and that it is not a source
of power by itself. He submits that unless made into a law by the
appropriate legislature or issued as a rule in terms of the proviso
to Article 309, the “provision” so made by the executive does not
become enforceable. At the same time, he submits that the E
impugned Memorandums must be deemed to be and must be
treated as Rules made and issued under the proviso to Article 309
of the Constitution. We find it difficult to agree with Shri Jethmalani.
Once we hold that a provision under Article 16(4) can be
made by the executive, it must necessarily follow that such a F
provision is effective the moment it is made. A Constitution
Bench of this Court in B.S. Yadav, (Y.V. Chandrachud, CJ,
speaking for the Bench) has observed:
“Article 235 does not confer upon the High Court the
power to make rules relating to conditions of service of judicial G
officers attached to district courts and the courts subordinate
thereto. Whenever it was intended to confer on any authority
the power to make any special provisions or rules, including
rules relating to conditions of service, the Constitution has stated
so in express terms. See for example Articles 15(4), 16(4),
77(3), 87(2), 118, 145(1), 146(1) and (2), 148(5), 166(3), 176(2), H
122 SUPREME COURT REPORTS [2020] 6 S.C.R.
A 187(3), 208, 225, 227(2) and (3), 229(1) and (2), 234, 237 and
283(1) and (2).”
740. It would, therefore, follow that until a law is made or
rules are issued under Article 309 with respect to reservation
in favour of backward classes, it would always be open to
B the Executive Government to provide for reservation of
appointments/posts in favour of Backward Classes by an
executive order. We cannot also agree with Shri Jethmalani that
the impugned Memorandums should be treated as Rules made
under the proviso to Article 309. There is nothing in them suggesting
even distantly that they were issued under the proviso to Article
C 309. They were never intended to be so, nor is that the stand of
the Union Government before us. They are executive orders issued
under Article 73 of the Constitution read with clause (4) of Article
16. The mere omission of a recital “in the name and by order of
the President of India” does not affect the validity or enforceability
D of the orders, as held by this Court repeatedly.”
(emphasis supplied by us)
(e). What is sought to be achieved by Articles 14 and 16 is equality
and equality of opportunity. In Indra Sawhney (supra), this Court
emphasised that founding fathers never envisaged reservation of all seats,
E and 50% shall be the rule. Some relaxation may become imperative, but
extreme caution is to be exercised, and a special case is to be made for
exceeding reservation more than 50%. This Court held:
“808. It needs no emphasis to say that the principal aim of Articles
14 and 16 is equality and equality of opportunity and that clause
F (4) of Article 16 is but a means of achieving the very same
objective. Clause (4) is a special provision — though not an
exception to clause (1). Both the provisions have to be harmonised,
keeping in mind the fact that both are but the re-statements of the
principle of equality enshrined in Article 14. The provision under
G Article 16(4) — conceived in the interest of certain sections of
society — should be balanced against the guarantee of equality
enshrined in clause (1) of Article 16 which is a guarantee held out
to every citizen and to the entire society. It is relevant to point out
that Dr Ambedkar himself contemplated reservation being
“confined to a minority of seats” (See his speech in Constituent
H
CHEBROLU LEELA PRASAD RAO & ORS. v. 123
STATE OF A.P. & ORS. [ARUN MISHRA, J.]
Assembly, set out in para 693). No other member of the Constituent A
Assembly suggested otherwise. It is, thus, clear that reservation
of a majority of seats was never envisaged by the Founding
Fathers. Nor are we satisfied that the present context requires
us to depart from that concept.
809.From the above discussion, the irresistible conclusion that B
follows is that the reservations contemplated in clause (4) of
Article 16 should not exceed 50%.
810. While 50% shall be the rule, it is necessary not to put out of
consideration certain extraordinary situations inherent in the great
diversity of this country and the people. It might happen that in C
far-flung and remote areas the population inhabiting those areas
might, on account of their being out of the mainstream of national
life and in view of conditions peculiar to and characteristically to
them, need to be treated in a different way, some relaxation in
this strict rule may become imperative. In doing so, extreme
caution is to be exercised and a special case made out. D
811. In this connection it is well to remember that the reservations
under Article 16(4) do not operate like a communal reservation. It
may well happen that some members belonging to, say, Scheduled
Castes get selected in the open competition field on the basis of
their own merit; they will not be counted against the quota reserved E
for Scheduled Castes; they will be treated as open competition
candidates.”
(emphasis supplied by us)
105. It is apparent that despite more than 72 years of attaining F
independence, we are not able to provide benefits to the bottom line, i.e.,
down-trodden and oppressed classes. Benefits meant to such classes
are not reaching them. The question is writ large how to trickle down
the benefits. Panchayat, Gram Sabha has been empowered, but still,
benefits are not reaching as envisaged. The right to information system
has to be strengthened at the village level. They must know how the G
money meant for development has been utilised. Transparency of
administration is vital for the removal of corruption. They are required to
be motivated. They must know what is allocated to them and how it is
spent. There is a need to improve the system, ensuring the implementation
of beneficial measures.
H
124 SUPREME COURT REPORTS [2020] 6 S.C.R.
A 106. It was envisaged that social disparities, economic and
backwardness should be wiped out within a period of 10 years, but
gradually, amendments have been made, and there is no review of the
lists nor the provisions of the reservation have come to an end. Instead,
there is a demand to increase them and to provide reservations within
the reservation. It is very hard for any elected government to have the
B
political will to meet with the challenges arising out of the aforesaid
scenario. By grant of privileges and amenities, it was felt that the
aspirations of socially and economically backward classes would be met,
and inequalities would diminish.
107. Reservation provided to scheduled tribes and constitution of
C scheduled areas is for the reason as systems concerning way of life are
different. They were in isolation, differed in various aspects from common
civilisation such as the delivery of justice, as regards legal system, the
culture, way of life differs from the ordinary people, their language and
their primitive way of life makes them unfit to put up with the mainstream
D and to be governed by the ordinary laws. It was intended by the protective
terms granted in the constitutional provisions that they will one day be
the part of the mainstream and would not remain isolated for all time to
come. The Scheduled Tribes Order, 1950 was promulgated to include
groups and communities which were not part of social society, based on
characteristic and culture, which developed by that time. The formal
E education, by and large, failed to reach them, and they remained a
disadvantaged class, as such required a helping hand to uplift them and
to make them contribute to the national development and not to remain
part of the primitive culture. The purpose of the constitutional provisions
is not to keep them in isolation but to make them part of the mainstream.
F They are not supposed to be seen as a human zoo and source of
enjoyment of primitive culture and for dance performances. The benefits
of developments have not reached them, and they remain isolated in
various parts of the country. The social and economic upliftment and
education are necessary for tribals to make them equal.
G 108. Question emanating in the case is how to balance the rights
of scheduled castes and scheduled tribes. Whether providing 100%
reservation in favour of any particular class is permissible?”
109. The High Court referred to the Constituent Assembly Debates.
What was stated by Dr. Ambedkar in an answer concerning backward
H community;
CHEBROLU LEELA PRASAD RAO & ORS. v. 125
STATE OF A.P. & ORS. [ARUN MISHRA, J.]
“A backward community is a community which is backward in A
the opinion of the Government. My honourable friend Mr.T.T.
Krishnamachari asked me whether this rule will be justiciable. It
is rather difficult to give a dogmatic answer. Personally, I think it
would be a justiciable matter. If the local Government included in
this category of reservations such a large number of seats; I think
B
one could very well go to the Federal Court and the Supreme
Court and say that the reservation is of such a magnitude that the
rule regarding equality of opportunity has been destroyed and the
Court will then come to the conclusion whether the local
Government or the State Government has acted in a reasonable
and prudent manner.” C
(emphasis supplied)
110. In M.R. Balaji & Ors. v. State of Mysore & Ors., (1963)
Supp 1 SCR 439, this Court held that total reservations in favour of
disadvantaged sections of the society could not exceed 50% thus:
D
“16. It now remains to consider the report made by the Nagan
Gowda Committee appointed by the State. This report proceeds
on the basis that higher social status has generally been accorded
on the basis of caste for centuries; and so, it takes the view that
the low social position of any community is, therefore, mainly due
to the caste system. According to the Report, there are ample E
reasons to conclude that social backwardness is based mainly on
racial, tribal, caste and denominational differences, even though
economic backwardness might have contributed to social
backwardness. It would thus be clear that the Committee
approached its problem of enumerating and classifying the socially F
and educationally backward communities on the basis that the
social backwardness depends substantially on the caste to which
the community belongs, though it recognised that economic
condition may be a contributory factor. The classification made
by the Committee and the enumeration of the backward
communities which it adopted shows that the Committee virtually G
equated the classes with the castes. According to the Committee,
the entire Lingayat community was socially forward, and that all
sections of Vokkaligas, excluding Bhunts, were socially backward.
With regard to the Muslims, the majority of the Committee agreed
that the Muslim community as a whole should be classified as H
126 SUPREME COURT REPORTS [2020] 6 S.C.R.
A socially backward. The Committee further decided that amongst
the backward communities two divisions should be made (i) the
backward and (ii) the More Backward. In making this distinction,
the Committee applied one test. It enquired: “Was the standard of
education in the community in question less than 50% of the State
average? If it was, the community should be regarded as more
B
backward; if it was not, the community should be regarded as
backward.” As to the extent of reservation in educational
institutions, the Committee’s recommendation was that 28% should
be reserved for backward and 22% for more backward. In other
words, 50% should be reserved for the whole group of backward
C communities besides 15% and 3% which had already been
reserved for the Scheduled Castes and Scheduled Tribes
respectively. That is how according to the Committee, 68% was
carved out by reservation for the betterment of the Backward
Classes and the Scheduled Castes and Tribes. It is on the basis of
these recommendations that the Government proceeded to make
D
its impugned order.”
111. In State of Kerala v. N.M. Thomas, (1976) 2 SCC 310, the
Court observed that the rule evolved in Balaji (supra) that reservations
cannot exceed 50% is merely a rule of caution.
E 112. In M. Nagaraj and Ors. v. Union of India and Ors., (2006)
8 SCC 212, it was held that the ceiling limit of the reservation is 50%
without which structure of equality of opportunity in Article 16 would
collapse. This Court held:
“122.We reiterate that the ceiling limit of 50%, the concept of
F creamy layer and the compelling reasons, namely, backwardness,
the inadequacy of representation and overall administrative
efficiency are all constitutional requirements without which the
structure of equality of opportunity in Article 16 would collapse.”
(emphasis supplied by us)
G 113. Reliance has also been placed on Union of India & Ors. v.
Rakesh Kumar & Ors., (2010) 4 SCC 50 on behalf of the respondents,
which related to a reservation in Panchayats. Considering the provisions
of Articles 243, 243D, 15(4), 16(4) and the Fifth Schedule of the
Constitution and under Part IX to extend Panchayati Raj system to
scheduled areas, it was held that post of Chairperson of Panchayat,
H
CHEBROLU LEELA PRASAD RAO & ORS. v. 127
STATE OF A.P. & ORS. [ARUN MISHRA, J.]
Scheduled Tribes in the scheduled areas cannot be put into a disadvantaged A
position. Because of the peculiar conditions in those areas, it is permissible
that chairpersons of scheduled areas should be exclusively from scheduled
tribes only. It was also held that Article 243D envisages proportionate
representation and is distinct and an independent constitutional basis of
reservation in Panchayati Raj institutions. The reservation under Article
B
243D cannot be compared with affirmative action measures under
Articles 15(4) and 16(4), where a balance is to be maintained between
affirmative action measures and merits. This Court pointedout though
Articles 14, 15, and 16 provide for affirmative action measures; however,
there is a need for periodical review keeping in view the changing social
and economic conditions. C
(a). The difference between Article 243D and Article 16(4) was
pointed out in Rakesh Kumar (supra) thus:
“42. Especially on the unviability of the analogy between Article
16(4) and Article 243-D, we are in agreement with a decision of
the Bombay High Court, reported as Vinayakrao Gangaramji D
Deshmukh v. P.C. Agrawal, AIR 1999 Bom 142. That case
involved a fact situation where the Chairperson position in a
panchayat was reserved in favour of a Scheduled Caste woman.
In the course of upholding this reservation, it was held: (AIR p.
143, para 4) E
“4. … Now, after the seventy-third and seventy-fourth
constitutional amendments, the constitution of local bodies has
been granted a constitutional protection and Article 243-D
mandates that a seat be reserved for the Scheduled Castes
and Scheduled Tribes in every Panchayat and sub-article (4) F
of the said Article 243-D also directs that the offices of the
Chairpersons in the panchayats at the village or any other level
shall be reserved for the Scheduled Castes, the Scheduled
Tribes and women in such manner as the legislature of a State
may, by law, provide. Therefore, the reservation in the local
bodies like the Village Panchayat is not governed by Article G
16(4), which speaks about the reservation in the public
employment, but a separate constitutional power directs the
reservation in such local bodies.”
43. For the sake of argument, even if an analogy between Article
243-D and Article 16(4) was viable, a close reading of Indra H
128 SUPREME COURT REPORTS [2020] 6 S.C.R.
A Sawhney, 1992 Supp (3) SCC 217, decision will reveal that even
though an upper limit of 50% was prescribed for reservations in
public employment, the said decision did recognise the need for
exceptional treatment in some circumstances. This is evident from
the following words (at paras 809-10): (SCC p. 735)
B “809. From the above discussion, the irresistible conclusion
that follows is that the reservations contemplated in clause (4) of
Article 16 should not exceed 50%.
810. While 50% shall be the rule, it is necessary not to put
out of consideration certain extraordinary situations inherent in
C the great diversity of this country and the people. It might happen
that in far-flung and remote areas the population inhabiting those
areas might, on account of their being out of the mainstream of
national life and in view of conditions peculiar to and characteristical
to them, need to be treated in a different way, some relaxation in
this strict rule may become imperative. In doing so, extreme caution
D is to be exercised and a special case made out.”
(b). The departure from adequate and proportionate representation
has been considered in Rakesh Kumar (supra) thus:
“48. There is of course a rational basis for departing from the
E norms of “adequate representation” as well as “proportionate
representation” in the present case. This was necessary because
it was found that even in the areas where Scheduled Tribes are in
a relative majority, they are under-represented in the governmental
machinery and hence vulnerable to exploitation. Even in areas
where persons belonging to Scheduled Tribes held public positions,
F it is a distinct possibility that the non-tribal population will come to
dominate the affairs. The relatively weaker position of the
Scheduled Tribes is also manifested through problems suchas land
grabbing by non-tribals, displacement on account of private as
well as governmental developmental activities, and the destruction
G of environmental resources. In order to tackle such social realities,
the legislature thought it fit to depart from the norm of “proportional
representation.” In this sense, it is not our job to second guess
such policy choices.
56. In the context of reservations in panchayats, it can be reasoned
that the limitation placed on the choices available to voters is an
H
CHEBROLU LEELA PRASAD RAO & ORS. v. 129
STATE OF A.P. & ORS. [ARUN MISHRA, J.]
incidental consequence of the reservation policy. In this case, the A
compelling State interest in safeguarding the interests of weaker
sections by ensuring their representation in local self-government
clearly outweighs the competing interest in not curtailing the
choices available to voters. It must also be reiterated here that
the 50% reservations in favour of STs as contemplated by the
B
first proviso to Section 4(g) of the PESA Act were not struck
down in the impugned judgment. Even though it was argued before
this Court that this provision makes a departure from the norm of
“proportionate representation” contemplated by Article 243-D(1),
we have already explained how Article 243-M(4)(b) permits
“exceptions” and “modifications” in the application of Part IX to C
Scheduled Areas. Sections 17(B)(1), 36(B)(1) and 51(B)(1) of
JPRA merely give effect to the exceptional treatment that is
mandated by the PESA Act.”
(c). This Court in Rakesh Kumar (supra) held that State of
Jharkhand was also under an obligation to account for the interests of D
the other backward classes as contemplated in the Panchayati Raj Act,
thus :
“57. However, in addition to the 50% reservations in favour of
Scheduled Tribes, the State of Jharkhand is also under an obligation
to account for the interests of Scheduled Castes and Other E
Backward Classes. The same has been contemplated in Sections
17(B)(2), 36(B)(2) and 51(B)(2) of JPRA which incorporate the
standard of “proportionate representation” for Scheduled Castes
and Backward Classes in such a manner that the total reservations
do not exceed 80%. This does not mean that reservations will
reach the 80% ceiling in all the Scheduled Areas. Since the F
allocation of seats in favour of Scheduled Castes and Backward
Classes has to follow the principle of proportionality, the extent of
total reservations is likely to vary across the different territorial
constituencies identified for the purpose of elections to the
panchayats. Depending on the demographic profile of a particular G
constituency, it is possible that the total reservations could well
fall short of the 80% upper ceiling. However, in Scheduled Areas
where the extent of the population belonging to the Scheduled
Castes and Backward Classes exceeds 30% of the total
population, the upper ceiling of 80% will become operative.
H
130 SUPREME COURT REPORTS [2020] 6 S.C.R.
A 58. Irrespective of such permutations, the legislative intent behind
the impugned provisions of JPRA is primarily that of safeguarding
the interests of persons belonging to the Scheduled Tribes category.
In the light of the preceding discussion, it is our considered view
that total reservations exceeding 50% of the seats in panchayats
located in Scheduled Areas are permissible on account of the
B
exceptional treatment mandated under Article 243-M(4)(b).
Therefore, we agree with the appellants and overturn the ruling
of the High Court of Jharkhand on this limited point.”
(emphasis supplied by us)
C (d). The decision has been rendered in the context of reservation
in Panchayat for which special provisions have been made in Article
243-M(4)(b), and this Court held that the provisions of Article 243D are
distinguishable from the provisions contained in Article 16(4). It has also
been emphasised that the State cannot ignore the other backward and
scheduled caste classes.
D
114. In K. Krishna Murthy (Dr.) &Ors. v. Union of India &Anr.,
(2010) 7 SCC 202, this Court observed thus:
“53. In this respect, we are in partial agreement with one of the
submissions made by Shri M. Rama Jois that the nature of
E disadvantages that restrict access to education and employment
cannot be readily equated with disadvantages in the realm of
political representation. To be sure, backwardness in the social
and economic sense does not necessarily imply political
backwardness. However, the petitioner’s emphasis on the
distinction between “selection” (in case of education and
F employment) and “election” (in case of political representation)
does not adequately reflect the complexities involved. It is, of
course, undeniable that in determining who can get access to
education and employment, due regard must be given to
considerations of merit and efficiency which can be measured in
G an objective manner. Hence, admissions to educational institutions
and the recruitment to government jobs is ordinarily done through
methods such as examinations, interviews or assessment of past
performance. Since it is felt that the applicants belonging to the
SC/ST/OBC categories among others are at a disadvantage when
they compete through these methods, a level playing field is sought
H to be created by way of conferring reservation benefits.
CHEBROLU LEELA PRASAD RAO & ORS. v. 131
STATE OF A.P. & ORS. [ARUN MISHRA, J.]
54. In the domain of political participation, there can be no objective A
parameters to determine who is more likely to get elected to
representative institutions at any level. The choices of voters are
not guided by an objective assessment of a candidate’s merit and
efficiency. Instead, they are shaped by subjective factors such as
the candidate’s ability to canvass support, past service record,
B
professed ideology and affiliations to organised groups among
others. In this context, it is quite possible that candidates belonging
to the SC/ST/OBC categories could demonstrate these subjective
qualities and win elections against candidates from the relatively
better-off groups. However, such a scenario cannot be presumed
in all circumstances. It is quite conceivable that in some localised C
settings, backwardness in the social and economic sense can also
act as a barrier to effective political participation and representation.
When it comes to creating a level playing field for the purpose of
elections to local bodies, backwardness in the social and economic
sense can indeed be one of the criteria for conferring reservation
D
benefits.
63. As noted earlier, social and economic backwardness does not
necessarily coincide with political backwardness. In this respect,
the State Governments are well advised to reconfigure their
reservation policies, wherein the beneficiaries under Articles 243-
D(6) and 243-T(6) need not necessarily be coterminous with the E
Socially and Educationally Backward Classes (SEBCs) [for the
purpose of Article 15(4)] or even the backward classes that are
underrepresented in government jobs [for the purpose of Article
16(4)]. It would be safe to say that not all of the groups which
have been given reservation benefits in the domain of education F
and employment need reservations in the sphere of local self-
government. This is because the barriers to political participation
are not of the same character as barriers that limit access to
education and employment. This calls for some fresh thinking and
policy-making with regard to reservations in local self-government.
G
64. In the absence of explicit constitutional guidance as to the
quantum of reservation in favour of backward classes in local
self-government, the rule of thumb is that of proportionate
reservation. However, we must lay stress on the fact that the
upper ceiling of 50% (quantitative limitation) with respect to vertical
H
132 SUPREME COURT REPORTS [2020] 6 S.C.R.
A reservations in favour of SCs/STs/OBCs should not be breached.
On the question of breaching this upper ceiling, the arguments
made by the petitioners were a little misconceived since they
had accounted for vertical reservations in favour of SCs/STs/
OBCs as well as horizontal reservations in favour of women
to assert that the 50% ceiling had been breached in some of
B
the States. This was clearly a misunderstanding of the position
since the horizontal reservations in favour of women are meant
to intersect with the vertical reservations in favour of SCs/
STs/OBCs, since one-third of the seats reserved for the latter
categories are to be reserved for women belonging to the
C same. This means that seats earmarked for women belonging to
the general category are not accounted for if one has to gauge
whether the upper ceiling of 50% has been breached.
65. Shri Rajeev Dhavan has contended that since the context
of local self-government is different from education and
D employment, the 50% ceiling for vertical reservations which
was prescribed in Indra Sawhney, 1992 Supp (3) SCC 217,
cannot be blindly imported since that case dealt with
reservations in government jobs. It was further contended
that the same decision had recognised the need for exceptional
treatment in some circumstances, which is evident from the
E following words: (SCC p. 735, paras 809-10)
“809. From the above discussion, the irresistible conclusion
that follows is that the reservations contemplated in clause (4) of
Article 16 should not exceed 50%.
F 810. While 50% shall be the rule, it is necessary not to put
out of consideration certain extraordinary situations inherent in
the great diversity of this country and the people. It might happen
that in far-flung and remote areas the population inhabiting those
areas might, on account of their being out of the mainstream of
national life and in view of conditions peculiar to and characteristical
G to them, need to be treated in a different way, some relaxation in
this strict rule may become imperative. In doing so, extreme caution
is to be exercised and a special case made out.”
66. Admittedly, reservations in excess of 50% do exist in some
exceptional cases, when it comes to the domain of political
H
CHEBROLU LEELA PRASAD RAO & ORS. v. 133
STATE OF A.P. & ORS. [ARUN MISHRA, J.]
representation. For instance, the Legislative Assemblies of the A
States of Arunachal Pradesh, Nagaland, Meghalaya, Mizoram and
Sikkim have reservations that are far in excess of the 50% limit.
However, such a position is the outcome of exceptional
considerations in relation to these areas. Similarly, vertical
reservations in excess of 50% are permissible in the composition
B
of local self-government institutions located in the Fifth Schedule
Areas.
67. In the recent decision reported as Union of India v. Rakesh
Kumar, (2010) 4 SCC 50, this Court has explained why it may be
necessary to provide reservations in favour of the Scheduled Tribes
that exceed 50% of the seats in panchayats located in the C
Scheduled Areas. However, such exceptional considerations
cannot be invoked when we are examining the quantum of
reservations in favour of backward classes for the purpose of
local bodies located in general areas. In such circumstances, the
vertical reservations in favour of SCs/STs/OBCs cannot exceed D
the upper limit of 50% when taken together. It is obvious that in
order to adhere to this upper ceiling, some of the States may have
to modify their legislations so as to reduce the quantum of the
existing quotas in favour of OBCs.”
115. The decision of Bombay High Court in Vinayakrao E
Gangaramji Deshmukh v. P C Agrawal, AIR 1999 Bom. 142 regarding
the distinction between Articles 243D and 16(4) was affirmed. This Court
observed that some decisions in past examined validity of reservations
in local self-Government applying principles evolved about employment
and education. It was also observed that for scheduled castes, scheduled
tribes and other backward classes categories, the level playing field is F
sought to be created by conferring reservation benefits. In K. Krishna
Murthy (supra), this Court also emphasised that socio-economic
backwardness does not necessarily coincide with political backwardness,
which need not necessarily be envisaged under Articles 15(4) and 16(4).
Barriers to political participation are not of the same character as barriers G
that limit access to education and employment. Concerning vertical
reservations, it was said that they have to be made in the upper ceiling of
50%.
The 100% reservation would amount to unreasonable and unfair
and cannot be termed except as unfair and unreasonable. Thus, we are H
134 SUPREME COURT REPORTS [2020] 6 S.C.R.
A of the considered opinion that providing 100% reservation to the
scheduled castes and scheduled tribes were not permissible. The
Governor in the exercise of the power conferred by para 5(1) of the
Fifth Schedule of the Constitution, cannot provide a 100% reservation.
116. In R. Chitralekha v. State of Mysore, AIR 1964 SC 1823, it
B was laid down that reservation should not exceed 50 percent; however,
a little relaxation is permissible with great care. Reservation is an
exception to the general rule. The quantum of reservation should not be
excessive and societally injurious.
117. In AIIMS Students Union v. A.I.I.M.S., JT 2001 (7) SC 12,
C the Court observed:
“Reservation, as an exception, maybe justified subject to
discharging the burden of proving justification in favour of the
class which must be educationally handicapped – the reservation
geared up to getting over the handicap. The rationale of reservation
D in the case of medical students must be removal of regional or
class inadequacy or like disadvantage. Even there, the quantum
of reservation should not be excessive of societally injurious. The
higher the level of the specially the lesser the role of reservation.”
118. Reliance has been placed on Lingappa Pochanna Appelwar
E & Ors. v. State of Maharashtra & Ors. (1985) 1 SCC 479 in which
the Court held that it is a Constitutional duty on the State to take positive
and stem measures to ensure dignity and right to life of Scheduled Tribes.
There is no quarrel with the proposition mentioned above; however,
Constitutional duty has to be discharged from a Constitutional perspective
and not in violation thereof.
F
119. It was argued on behalf of the respondents that the scope of
judicial review is very limited in such cases. The court may observe due
deference to the opinion of State if the material exists to support the
opinion that is formed. The decision in Indra Sawhney (supra) has been
relied upon, in which this Court considered the question and held:
G
“798. Not only should a class be a backward class for meriting
reservations, it should also be inadequately represented in the
services under the State. The language of clause (4) makes it
clear that the question of whether a backward class of citizens is
not adequately represented in the services under the State is a
H matter within the subjective satisfaction of the State. This is evident
CHEBROLU LEELA PRASAD RAO & ORS. v. 135
STATE OF A.P. & ORS. [ARUN MISHRA, J.]
from the fact that the said requirement is preceded by the words A
“in the opinion of the State”. This opinion can be formed by the
State on its own, i.e., on the basis of the material it has in its
possession already, or it may gather such material through a
Commission/Committee, person or authority. All that is required
is, there must be some material upon which the opinion is formed.
B
Indeed, in this matter the court should show due deference to the
opinion of the State, which in the present context means the
executive. The executive is supposed to know the existing
conditions in the society, drawn as it is from among the
representatives of the people in Parliament/Legislature. It does
not, however, mean that the opinion formed is beyond judicial C
scrutiny altogether. The scope and reach of judicial scrutiny in
matters within subjective satisfaction of the executive are well
and extensively stated in Barium Chemicals v. Company Law
Board37 which need not be repeated here. Suffice it to mention
that the said principles apply equally in the case of a constitutional
D
provision like Article 16(4), which expressly places the particular
fact (inadequate representation) within the subjective judgment
of the State/executive.”
(emphasis supplied by us)
120. In Indra Sawhney (supra), it was observed that each situation E
could not be visualised and must be left to appropriate authorities. There
can be various tests for identifying backward classes. The Court can lay
down only general guidelines. If the approach adopted by the State is
fair and adequate, then the Court has no say in the matter. The Court
held:
F
“780. Now, we may turn to the identification of a “backward class
of citizens.” How do you go about it? Where do you begin? Is the
method to vary from State to State, region to region, and from
rural to urban? What do you do in the case of religions where
caste-system is not prevailing? What about other classes, groups,
and communities which do not wear the label of caste? Are the G
people living adjacent to cease-fire line (in Jammu and Kashmir)
or hilly or inaccessible regions to be surveyed and identified as
backward classes for the purpose of Article 16(4)? And so on
and so forth are the many questions asked of us. We shall answer
them. But our answers will necessarily deal with generalities of H
136 SUPREME COURT REPORTS [2020] 6 S.C.R.
A the situation and not with problems or issues of a peripheral nature
which are peculiar to a particular State, district or region. Each
and every situation cannot be visualised and answered. That must
be left to the appropriate authorities appointed to identify. We can
lay down only general guidelines.
B 783. We do not mean to suggest — we may reiterate — that the
procedure indicated hereinabove is the only procedure or method/
approach to be adopted. Indeed, there is no such thing as a standard
or model procedure/approach. It is for the authority (appointed to
identify) to adopt such approach and procedure as it thinks
appropriate, and so long as the approach adopted by it is fair and
C adequate, the court has no say in the matter. The only object of
the discussion in the preceding para is to emphasise that if a
Commission/Authority begins its process of identification with
castes (among Hindus) and occupational groupings among others,
it cannot by that reason alone be said to be constitutionally or
D legally bad. We must also say that there is no rule of law that a
test to be applied for identifying backward classes should be only
one and/or uniform. In a vast country like India, it is simply not
practicable. If the real object is to discover and locate
backwardness, and if such backwardness is found in a caste, it
can be treated as backward; if it is found in any other group,
E section or class, they too can be treated as backward.
*** *** ***
854. (b) Strictly speaking, appointment of a Commission under
Article 340 is not necessary to identify the other backward classes.
F Article 340 does not say so. According to it, the Commission is to
be constituted ‘to investigate the conditions of socially and
educationally backward classes … and the difficulties under which
they labour and to make recommendations as to the steps that
should be taken by the Union or any State to remove such
difficulties ….” The Government could have, even without
G appointing a Commission, specified the OBCs, on the basis of
such material as it may have had before it (e.g., the lists prepared
by various State Governments) and then appointed the Commission
to investigate their conditions and to make appropriate
recommendations. It is true that Mandal Commission was
H constituted “to determine the criteria for defining the socially and
CHEBROLU LEELA PRASAD RAO & ORS. v. 137
STATE OF A.P. & ORS. [ARUN MISHRA, J.]
educationally backward classes” and the Commission did A
determine the same. Even so, it is necessary to keep the above
constitutional position in mind, — more particularly in view of the
veto given to State lists over the Mandal lists as explained in the
preceding sub-para. The criteria evolved by Mandal Commission
for defining/identifying the Other Backward Classes cannot be
B
said to be irrelevant. Maybe there are certain errors in actual
exercise of identification, in the nature of over-inclusion or under-
inclusion, as the case may be. But in an exercise of such magnitude
and complexity, such errors are not uncommon. These errors
cannot be made a basis for rejecting either the relevance of the
criteria evolved by the Commission or the entire exercise of C
identification. It is one thing to say that these errors must be rectified
by the Government of India by evolving an appropriate mechanism
and an altogether different thing to say that on that account, the
entire exercise becomes futile. There can never be a perfect
report. In human affairs, such as this, perfection is only an ideal
D
— not an attainable goal. More than forty years have passed by.
So far, no reservations could be made in favour of OBCs for one
or the other reason in Central services though in many States,
such reservations are in force. Reservations in favour of OBCs
are in force in the States of Kerala, Tamil Nadu, Karnataka, Andhra
Pradesh, Maharashtra, Orissa, Bihar, Gujarat, Goa, Uttar Pradesh, E
Punjab, Haryana and Himachal Pradesh among others. In Madhya
Pradesh, a list of OBCs was prepared on the basis of the Mahajan
Commission Report but it appears to have been stayed by the
High Court.”
(emphasis supplied by us) F
It was also observed that strictly speaking, the appointment of a
Commission is not necessary to identify the other backward classes.
121. Reliance has also been placed on Barium Chemicals v.
Company Law Board AIR 1967 SC 295 to argue that the scope of
judicial review is limited. It is not for the court to find sufficiency. It is G
not open to the court to adjudge the accuracy of the material to conclude.
122. Dr. Rajeev Dhawan, learned Senior Counsel has relied upon
Treatise on Constitutional Law (Fifth Edition) by Ronald D. Rotunda, in
which it has been observed that law should be tested on traditional rational
H
138 SUPREME COURT REPORTS [2020] 6 S.C.R.
A standards and Court need not review seriously suspect classification.
Following observations have been made:
“The Court, in an opinion by Justice White, found that the retirement
classification should be tested by general equal protection
principles, but that it did not violate the equal protection guarantee.
B Although the parties agreed that the law should be tested under
the traditional rational basis standard, Justice White’s opinion
stressed that the federal judiciary is not to review seriously those
classifications that do not involve fundamental rights or suspect
classifications:
C The Constitution presumes that, absent some reason to infer
antipathy, even improvident decisions will eventually be rectified
by the democratic process and that judicial intervention is
generally unwarranted no matter how unwisely we may think
a political branch has acted. Thus, we will not overturn such a
statute unless the varying treatment of different groups or
D persons is so unrelated to the achievement of any combination
of legitimate purposes that we can only conclude that the
legislature’s actions were irrational.”
Applying the traditional rational standard, the position is worsened
to support the impugned G.O.
E
123. Reliance has also been placed on Jarnail Singh &Ors. v.
Lachhmi Narain Gupta &Ors.,2018 (10) SCC 396, in which it was
observed:
“23. This brings us to whether the judgment in M. Nagaraj v.
Union of India, (2006) 8 SCC 212needs to be revisited on the
F other grounds that have been argued before us. Insofar as the
State having to show quantifiable data as far as backwardness of
the class is concerned, we are afraid that we must reject Shri
Shanti Bhushan’s argument. The reference to “class” is to the
Scheduled Castes and the Scheduled Tribes, and their inadequacy
G of representation in public employment. It is clear, therefore, that
Nagaraj, (2006) 8 SCC 212, has, in unmistakable terms, stated
that the State has to collect quantifiable data showing
backwardness of the Scheduled Castes and the Scheduled Tribes.
We are afraid that this portion of the judgment is directly contrary
to the nine-Judge Bench in Indra Sawhney (1), 1922 Supp (3)
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CHEBROLU LEELA PRASAD RAO & ORS. v. 139
STATE OF A.P. & ORS. [ARUN MISHRA, J.]
SCC 217. Jeevan Reddy, J., speaking for himself and three other A
learned Judges, had clearly held:
“[t]he test or requirement of social and educational
backwardness cannot be applied to the Scheduled Castes and
the Scheduled Tribes, who indubitably fall within the expression
“backward class of citizens”.” (See SCC p. 727, paras 796 to B
797.)
Equally, Dr Justice Thommen, in his conclusion at para 323(4),
had held as follows: (SCC pp. 461-62)
“323. Summary
C
* * *
(4) Only such classes of citizens who are socially and
educationally backward are qualified to be identified as
Backward Classes. To be accepted as Backward Classes for
the purpose of reservation under Article 15 or Article 16, their
D
backwardness must have been either recognised by means of
a notification by the President under Article 341 or Article 342
declaring them to be Scheduled Castes or Scheduled Tribes,
or, on an objective consideration, identified by the State to be
socially and educationally so backward by reason of identified
prior discrimination and its continuing ill effects as to be E
comparable to the Scheduled Castes or the Scheduled Tribes.
In the case of the Scheduled Castes or the Scheduled Tribes,
these conditions are, in view of the notifications, presumed to
be satisfied.”
124. In Jarnail Singh (supra), this Court considered the decision F
of M. Nagaraj (supra), which dealt with the promotional aspect. In that
context, the aforesaid observations were made by this Court. In the
instant case, the question involved is different. This case does not pertain
to quantifying data for promotional avenues. The question to quantify
data showing the backwardness of scheduled castes or scheduled tribes
is not germane. The decision has no application. The question involved G
in the instant case is whether reservation for scheduled tribes is
permissible, but to what extent. The decision in Jarnail Singh (supra)
concerning quantifying data for reservation and promotion does not apply
to provisions of Para 5 of Schedule V of the Constitution of India.
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140 SUPREME COURT REPORTS [2020] 6 S.C.R.
A 125. Dr. Rajeev Dhawan, learned Senior Counsel, has made
available the Annual Report of the Governor on the Administration of
Scheduled Areas in Andhra Pradesh for the year 1999-2000, in which
question of the amendment and bringing a fresh notification in place of
G.O. 275, Social Welfare (E) Dept. dated 5.11.1986 for reservation of
all teacher vacancies in the educational institutions within the Scheduled
B
Areas in favour of local Scheduled Tribes, was considered. It was resolved
that as against the vacant posts reserved for the local tribals in the
Scheduled Areas, if the local tribals are not available, it may be filled by
non-local tribals. The relevant agenda item no.3 and resolution thereupon,
which form part of the report sent to the President, is reproduced
C hereunder:
“Agenda Item: 3
The amendment and bringing a fresh notification in place
of G.O.275, Social Welfare (E) Dept. dt. 5.11.1986 for reservation
of all teacher vacancies in the Educational Institutions within the
D Scheduled Areas in favour of Local Scheduled Tribes.
The Commissioner of Tribal Welfare explain the above item
in detail:
Resolution:
E It is decided that the vacant posts reserved for local tribals in
scheduled areas. If the local tribals are not available, the posts
may be filled by non-local tribals.”
Thus, it is apparent that the Andhra Pradesh Tribes Advisory
Council took the decision described above. It is pertinent to mention that
F the G.O.275 dated 5.11.1986 was struck down by the High Court/Tribunal.
The civil appeal filed in this Court was withdrawn. It is also apparent
that there were vacant posts reserved for the local tribals in the Scheduled
Areas, as they could not be filled; thus, it was decided to fill the posts by
local-non tribals.
G The reservation of 100 per cent posts was irrational and arbitrary
and violative of Article 14 of the Constitution of India. On the one hand,
local tribals were not available, and the posts were vacant, thereby a
decision was taken to fill those posts by non-local tribals, and on the
other hand, a decision was taken to fill these posts by incumbents who
were residing in the area since 26.1.1950. The minutes of the Andhra
H
CHEBROLU LEELA PRASAD RAO & ORS. v. 141
STATE OF A.P. & ORS. [ARUN MISHRA, J.]
Pradesh Tribes Advisory Council formed part of the report of the A
Governor, which was sent to the President under Para Three of the
Fifth Schedule.
126. The Governor, as per Para 3 of Schedule V of Constitution,
has to submit a report to the President regarding the administration of
scheduled areas annually or whenever so required by the President. B
The report is required to keep track of the progress in the areas. The
report is essential for deciding to make reservations and for its review.
However, 100 percent reservation could not have been provided even
by amending Act of 1997, at the cost of the scheduled castes, backward
classes, open category and the scheduled tribes who might have settled
in the areas after 26th January 1950, as reservation had been provided C
only to the tribal families residing in the district on or before 26th January
1950. Thus, the action is discriminatory vis-à-vis not only concerning
open category but also to the disadvantageous sections of the society,
totally vanishing the hopes of the incumbents of other classes. The
decision to issue G.O. Ms No.3/2000 was taken not on verifiable data, D
but it was taken on the basis that there was chronic absenteeism of non-
tribal teachers in the schools in scheduled areas.
127. By providing 100 percent reservation to the scheduled tribes
has deprived the scheduled castes and other backward classes also of
their due representation. The concept of reservation is not proportionate E
but adequate, as held in Indra Sawhney (supra). The action is thus
unreasonable and arbitrary and violative of provisions of Articles 14, 15
and 16 of the Constitution of India. It also impinges upon the right of
open category and scheduled tribes who have settled in the area after
26th January 1950. The total percentage of reservation provided for
Scheduled Tribes in the State is 6%. By providing 100 percent reservation F
in the scheduled areas, the rights of the tribals, who are not residents of
the scheduled areas, shall also be adversely affected. As per Presidential
order under Article 371-D, they cannot stake their claim in other areas.
The posts in other areas are to be reduced by making a 100% reservation
in a particular area. G
128. The population in the scheduled areas not only includes
scheduled tribes but also open category, scheduled castes, and other
scheduled tribes settled after 26.1.1950, and they are not covered in the
notification. In Khammam district, as noted by the High Court, out of 31
mandals notified as scheduled areas, the population of the scheduled H
142 SUPREME COURT REPORTS [2020] 6 S.C.R.
A tribes is less than 50 percent, except in 9 mandals. In those 9 mandals,
where there is more than 50%, the population of the scheduled tribes’
ranges between 53 percent to 77 percent. The percentage of the
scheduled tribes’ students is around 25 percent, and the remaining students
belong to other classes. Similarly, in West Godavari district, the population
of scheduled tribes as per the 1991 census was 39.31 percent, whereas
B
the population of non-tribals was 60.69 percent.
129. Concerning Kothagudem, the High Court noted that many
collieries and industries are belonging to public and private sector
undertakings and a large number of the influx of the people from scheduled
castes, scheduled tribes and backward classes had taken place to obtain
C employment.
130. No law mandates that only tribal teachers can teach in the
scheduled areas; thus, the action defies the logic. Another reason given
is the phenomenal absenteeism of teachers in schools. That could not
have been a ground for providing 100 percent reservation to the tribal
D teachers in the areas. It is not the case that incumbents of other categories
are not available in the areas. When a district is a unit for the employment,
the ground applied for providing reservation for phenomenal absenteeism
is irrelevant and could not have formed the basis for providing 100 percent
reservation. The problem of absenteeism could have been taken care of
E by providing better facilities and other incentives.
131. The reason assigned that reservation was to cover impetus
in the scheduled areas in the field of education and to strengthen
educational infrastructure is also equally bereft of substance. By depriving
opportunity to the others, it cannot be said that any impetus could have
F been given to the cause of students and effective education, and now
that could have been strengthened. The provisions of 100 percent
reservation are ignoring the merit. Thus, it would weaken the educational
infrastructure and the merit and the standard of education imparted in
the schools. Educational development of students cannot be made only
by a particular class of teachers appointed by providing reservation,
G ignoring merit in toto. The ideal approach would be that teachers are
selected based on merit.
132. Depriving the opportunity of employment to other categories
cannot be said to be a method of achieving social equilibrium. Apart
from that, roster points are maintained for appointment by providing 100
H
CHEBROLU LEELA PRASAD RAO & ORS. v. 143
STATE OF A.P. & ORS. [ARUN MISHRA, J.]
percent reservation, there would be a violation of the said provision also, A
and it would become unworkable and the action has an effect of taking
away the rights available to the tribals settled in the other non-scheduled
areas. By providing 100 per cent reservation in the scheduled areas,
their right to enjoy reservation to the extent it is available to them had
also been taken away by uncalled for distribution of reservation.
B
133. There were no such extraordinary circumstances to provide
a 100 percent reservation in Scheduled Areas. It is an obnoxious idea
that tribals only should teach the tribals. When there are other local
residents, why they cannot teach is not understandable. The action defies
logic and is arbitrary. Merit cannot be denied in toto by providing
reservations. C
134. A reservation that is permissible by protective mode, by
making it 100 percent would become discriminatory and impermissible.
The opportunity of public employment cannot be denied unjustly to the
incumbents, and it is not the prerogative of few. The citizens have equal
rights, and the total exclusion of others by creating an opportunity for D
one class is not contemplated by the founding fathers of the Constitution
of India. Equality of opportunity and pursuit of choice under Article
51-A cannot be deprived of unjustly and arbitrarily. As per the Presidential
Order, the citizens of the locality and outsiders were entitled to 15 percent
of employment in the district cadre in terms of clause 10 of Article 370(1) E
(d) of the Constitution. Thus, the G.O. does not classify but deals with
reservations. It was contrary to the report sent to the President by the
Governor, which indicated even the posts which were reserved for
scheduled tribes teachers, they were not available as such Tribes Advisory
Council decided to fill them from other non-local tribals.
F
135. We find that G.O. Ms. No.3/2000 is wholly impermissible
and cannot be said to be legally permissible and constitutionally valid. It
can be said that action is not only irrational, but it violates the rights
guaranteed under Part III of the Constitution and is not sustainable.
In Re: Question No.3: Whether the notification merely G
contemplates a classification under Article 16(1) and not
reservation under Article 16(4)?
136. Question No.3 is whether notification No.3/2000 contains
classification under Article 16(1) and does not provide reservation under
Article 16(4) of the Constitution.
H
144 SUPREME COURT REPORTS [2020] 6 S.C.R.
A 137. Article 16(1) permit classification being a facet of Article 14.
Clause 4 of Article 16 is an instance of classification arising out of Clause
1 of Article 16 of the Constitution. Articles 14, 16 (1) and 16(4) are all
facets of equality.In Indra Sawhney (supra), it was held that Article
16(4) is not an exception to Article 16(1) but a part of equality. This
Court observed that in certain situations to treat unequal persons equally,
B
provide them equality:
“741. In M.R. Balaji v. State of Mysore, 1963 Supp 1 SCR 439,
it was held — “there is no doubt that Article 15(4) has to be read
as a proviso or an exception to Articles 15(1) and 29(2)”. It was
observed that Article 15(4) was inserted by the First Amendment
C in the light of the decision in State of Madras v.
SmtChampakamDorairajan, 1951 SCR 525, with a view to
remove the defect pointed out by this court namely, the absence
of a provision in Article 15 corresponding to clause (4) of Article
16. Following Balaji it was held by another Constitution Bench
D (by majority) in T. Devadasan v. Union of India, (1964) 4 SCR
680 — “further this Court has already held that clause (4) of
Article 16 is by way of a proviso or an exception to clause (1)”.
Subba Rao, J, however, opined in his dissenting opinion that Article
16(4) is not an exception to Article 16(1) but that it is only an
emphatic way of stating the principle inherent in the main provision
E itself. Be that as it may, since the decision in Devadasan, it was
assumed by this Court that Article 16(4) is an exception to Article
16(1). This view, however, received a severe setback from the
majority decision in State of Kerala v. N.M. Thomas (1976) 2
SCC 310. Though the minority (H.R. Khanna and A.C. Gupta,
F JJ) stuck to the view that Article 16(4) is an exception, the majority
(Ray, CJ, Mathew, Krishna Iyer and Fazal Ali, JJ) held that Article
16(4) is not an exception to Article 16(1) but that it was merely an
emphatic way of stating a principle implicit in Article 16(1). (Beg,
J took a slightly different view which it is not necessary to mention
here.) The said four learned Judges — whose views have been
G referred to in para 713 — held that Article 16(1) being a facet of
the doctrine of equality enshrined in Article 14 permits reasonable
classification just as Article 14 does. In our respectful opinion, the
view taken by the majority in Thomas is the correct one. We too
believe that Article 16(1) does permit reasonable classification
H
CHEBROLU LEELA PRASAD RAO & ORS. v. 145
STATE OF A.P. & ORS. [ARUN MISHRA, J.]
for ensuring attainment of the equality of opportunity assured by A
it. For assuring equality of opportunity, it may well be necessary
in certain situations to treat unequally situated persons unequally.
Not doing so, would perpetuate and accentuate inequality. Article
16(4) is an instance of such classification, put in to place the matter
beyond controversy. The “backward class of citizens” are
B
classified as a separate category deserving a special treatment in
the nature of reservation of appointments/posts in the services of
the State. Accordingly, we hold that clause (4) of Article 16 is not
exception to clause (1) of Article 16. It is an instance of
classification implicit in and permitted by clause (1). The speech
of Dr Ambedkar during the debate on draft Article 10(3) C
[corresponding to Article 16(4)] in the Constituent Assembly —
referred to in para 693 — shows that a substantial number of
members of the Constituent Assembly insisted upon a
“provision (being) made for the entry of certain communities
which have so far been outside the administration”, and that draft
D
clause (3) was put in in recognition and acceptance of the said
demand. It is a provision which must be read along with and in
harmony with clause (1). Indeed, even without clause (4), it would
have been permissible for the State to have evolved such a
classification and made a provision for reservation of appointments/
posts in their favour. Clause (4) merely puts the matter beyond E
any doubt in specific terms.
742. Regarding the view expressed in Balaji (supra) and
Devadasan (supra), it must be remembered that at that time it
was not yet recognised by this Court that Article 16(1) being a
facet of Article 14 does implicitly permit classification. Once this F
feature was recognised the theory of clause (4) being an exception
to clause (1) became untenable. It had to be accepted that clause
(4) is an instance of classification inherent in clause (1). Now, just
as Article 16(1) is a facet or an elaboration of the principle
underlying Article 14, clause (2) of Article 16 is also an elaboration
of a facet of clause (1). If clause (4) is an exception to clause (1) G
then it is equally an exception to clause (2). Question then arises,
in what respect if clause (4) an exception to clause (2), if ‘class’
does not means ‘caste’. Neither clause (1) nor clause (2) speak
of class. Does the contention mean that clause (1) does not permit
H
146 SUPREME COURT REPORTS [2020] 6 S.C.R.
A classification and therefore clause (4) is an exception to it. Thus,
from any point of view, the contention of the petitioners has no
merit.”
(emphasis supplied by us)
138. In Indra Sawhney (supra), the Court held that Article 16(4)
B aims at group backwardness, thus:
“792. In our opinion, it is not a question of permissibility or
desirability of such test but one of proper and more appropriate
identification of a class — a backward class. The very concept
of a class denotes a number of persons having certain common
C traits which distinguish them from the others. In a backward class
under clause (4) of Article 16, if the connecting link is the social
backwardness, it should broadly be the same in a given class. If
some of the members are far too advanced socially (which in the
context, necessarily means economically and, may also mean
D educationally) the connecting thread between them and the
remaining class snaps. They would be misfits in the class. After
excluding them alone, would the class be a compact class. In
fact, such exclusion benefits the truly backward. Difficulty,
however, really lies in drawing the line — how and where to draw
the line? For, while drawing the line, it should be ensured that it
E does not result in taking away with one hand what is given by the
other. The basis of exclusion should not merely be economic,
unless, of course, the economic advancement is so high that it
necessarily means social advancement. Let us illustrate the point.
A member of backward class, say a member of carpenter caste,
F goes to Middle East and works there as a carpenter. If you take
his annual income in rupees, it would be fairly high from the Indian
standard. Is he to be excluded from the Backward Class? Are his
children in India to be deprived of the benefit of Article 16(4)?
Situation may, however, be different, if he rises so high
economically as to become — say a factory owner himself. In
G such a situation, his social status also rises. He himself would be
in a position to provide employment to others. In such a case, his
income is merely a measure of his social status. Even otherwise
there are several practical difficulties too in imposing an income
ceiling. For example, annual income of Rs 36,000 may not count
H for much in a city like Bombay, Delhi or Calcutta whereas it may
CHEBROLU LEELA PRASAD RAO & ORS. v. 147
STATE OF A.P. & ORS. [ARUN MISHRA, J.]
be a handsome income in rural India anywhere. The line to be A
drawn must be a realistic one. Another question would be, should
such a line be uniform for the entire country or a given State or
should it differ from rural to urban areas and so on. Further, income
from agriculture may be difficult to assess and, therefore, in the
case of agriculturists, the line may have to be drawn with reference
B
to the extent of holding. While the income of a person can be
taken as a measure of his social advancement, the limit to be
prescribed should not be such as to result in taking away with one
hand what is given with the other. The income limit must be such
as to mean and signify social advancement. At the same time, it
must be recognised that there are certain positions, the occupants C
of which can be treated as socially advanced without any further
enquiry. For example, if a member of a designated backward class
becomes a member of IAS or IPS or any other All India Service,
his status is society (social status) rises; he is no longer socially
disadvantaged. His children get full opportunity to realise their
D
potential. They are in no way handicapped in the race of life. His
salary is also such that he is above want. It is but logical that in
such a situation, his children are not given the benefit of reservation.
For by giving them the benefit of reservation, other
disadvantaged members of that backward class may be
deprived of that benefit. It is then argued for the respondents E
that ‘one swallow doesn’t make the summer’, and that merely
because a few members of a caste or class become socially
advanced, the class/caste as such does not cease to be backward.
It is pointed out that clause (4) of Article 16 aims at group
backwardness and not individual backwardness. While we agree
F
that clause (4) aims at group backwardness, we feel that exclusion
of such socially advanced members will make the ‘class’ a truly
backward class and would more appropriately serve the purpose
and object of clause (4). (This discussion is confined to Other
Backward Classes only and has no relevance in the case of
Scheduled Tribes and Scheduled Castes).” G
(emphasis supplied by us)
(a). Concerning the interpretation of provisions in Articles 15(4)
and 16(4), in Indra Sawhney (supra), this Court held that:
H
148 SUPREME COURT REPORTS [2020] 6 S.C.R.
A “787. It is true that no decision earlier to it specifically said so, yet
such an impression gained currency and it is that impression which
finds expression in the above observation. In our respectful opinion,
however, the said assumption has no basis. Clause (4) of Article
16 does not contain the qualifying words “socially and
educationally” as does clause (4) of Article 15. It may be
B
remembered that Article 340 (which has remained unamended)
does employ the expression ‘socially and educationally backward
classes’ and yet that expression does not find place in Article
16(4). The reason is obvious: “backward class of citizens” in Article
16(4) takes in Scheduled Tribes, Scheduled Castes and all other
C backward classes of citizens including the socially and educationally
backward classes. Thus, certain classes which may not qualify
for Article 15(4) may qualify for Article 16(4). They may not
qualify for Article 15(4) but they may qualify as backward class
of citizens for the purposes of Article 16(4). It is equally relevant
to notice that Article 340 does not expressly refer to services or
D
to reservations in services under the State, though it may be that
the Commission appointed thereunder may recommend reservation
in appointments/posts in the services of the State as one of the
steps for removing the difficulties under which SEBCs are
labouring and for improving their conditions. Thus, SEBCs referred
E to in Article 340 is only of the categories for whom Article 16(4)
was enacted: Article 16(4) applies to a much larger class than the
one contemplated by Article 340. It would, thus, be not correct to
say that ‘backward class of citizens’ in Article 16(4) are the same
as the socially and educationally backward classes in Article 15(4).
Saying so would mean and imply reading a limitation into a beneficial
F
provision like Article 16(4). Moreover, when speaking of
reservation in appointments/posts in the State services — which
may mean, at any level whatsoever — insisting upon educational
backwardness may not be quite appropriate.”
(emphasis supplied by us)
G
(b). Article 16(4) applies to much larger classes than is
contemplated by Article 340. Thus, it would not be correct to say that
the backward class of citizens under Article 16(4) is the same as provided
as socially and backward classes in Article 15(4). What is backward
community, has been considered in Indra Sawhney (supra) thus:
H
CHEBROLU LEELA PRASAD RAO & ORS. v. 149
STATE OF A.P. & ORS. [ARUN MISHRA, J.]
“693. Ultimately Dr. B.R. Ambedkar, the Chairman of the Drafting A
Committee, got up to clarify the matter. His speech, which put an
end to all discussion and led to adopting of draft Article 10(3), is
worth quoting in extenso, since it throws light on several questions
relevant herein:
“ … [T]here are three points of view which it is necessary for B
us to reconcile if we are to produce a workable proposition
which will be accepted by all. Of the three points of view, the
first is that there shall be equality of opportunity for all citizens.
It is the desire of many Members of this House that every
individual who is qualified for a particular post should be free
to apply for that post, to sit for examinations and to have his C
qualifications tested so as to determine whether he is fit for
the post or not and that there ought to be no limitations, there
ought to be no hindrance in the operation of this principle of
equality of opportunity. Another view mostly shared by a section
of the House is that, if this principle is to be operative — and it D
ought to be operative in their judgment to its fullest extent —
there ought to be no reservations of any sort for any class or
community at all, that all citizens, if they are qualified, should
be placed on the same footing of equality so far as the public
services are concerned. That is the second point of view we
have. Then we have quite a massive opinion which insists that, E
although theoretically it is good to have the principle that there
shall be equality of opportunity, there must at the same time be
a provision made for the entry of certain communities which
have so far been outside the administration. As I said, the
Drafting Committee had to produce a formula which would F
reconcile these three points of view, firstly, that there shall be
equality of opportunity, secondly that there shall be reservations
in favour of certain communities which have not so far had a
‘proper look-in’ so to say into the administration. If Honourable
Members will bear these facts in mind — the three principles
we had to reconcile, — they will see that no better formula G
could be produced than the one that is embodied in sub-clause
(3) of Article 10 of the Constitution; …. It is a generic principle.
At the same time, as I said, we had to reconcile this formula
with the demand made by certain communities that the
administration which has now — for historical reasons — been H
150 SUPREME COURT REPORTS [2020] 6 S.C.R.
A controlled by one community or a few communities, that
situation should disappear and that the others also must have
an opportunity of getting into the public services. Supposing,
for instance, we were to concede in full the demand of those
communities who have not been so far employed in the public
service to the fullest extent, what would really happen is, we
B
shall be completely destroying the first proposition upon which
we are all agreed, namely, that there shall be an equality of
opportunity. Let me give an illustration. Supposing, for instance,
reservations were made for a community or a collection of
communities, the total of which came to something like 70%
C of the total posts under the State and only 30% are retained as
the unreserved. Could anybody say that the reservation of 30%
as open to general competition would be satisfactory from the
point of view of giving effect to the first principle, namely, that
there shall be equality of opportunity? It cannot be in my
judgment. Therefore the seats to be reserved, if the reservation
D
is to be consistent with sub-clause (1) of Article 10, must be
confined to a minority of seats. It is then only that the first
principle could find its place in the Constitution and be effective
in operation. If Honourable Members understand this position
that we have to safeguard two things, namely, the principle of
E equality of opportunity and at the same time satisfy the demand
of communities which have not had so far representation in
the State, then, I am sure they will agree that unless you use
some such qualifying phrase as ‘backward’ the exception made
in favour of reservation will ultimately eat up the rule altogether.
Nothing of the rule will remain. That I think if I may say so, is
F
the justification why the Drafting Committee undertook on its
own shoulders the responsibility of introducing the word
‘backward’ which, I admit, did not originally find a place in the
fundamental right in the way in which it was passed by this
Assembly ….
G Somebody asked me: ‘What is a backward community’?
Well, I think anyone who reads the language of the draft itself
will find that we have left it to be determined by each local
Government. A backward community is a community which is
backward in the opinion of the Government.” (C.A.D., Vol. 7,
H p. 701)”
(emphasis supplied by us)
CHEBROLU LEELA PRASAD RAO & ORS. v. 151
STATE OF A.P. & ORS. [ARUN MISHRA, J.]
(c). In Indra Sawhney (supra), the Court held that once the A
reservation has been provided to other backward classes, scheduled
castes and scheduled tribes within the purview of Article 16(4), any
further exemption, concession or preference to such class of persons
can be extended only under clause (4) of Article 16. Article 16(4) is
exhaustive of the special provisions that can be made in favour of a
B
backward class of citizens, that is, other backward classes, scheduled
castes, and scheduled tribes. Under Article 16(1), if the State wants to
make any reservation on whatever point, to address a specific situation,
Article 16(4) acts as a damper as there would be whittling down of the
vacancies for free competition, and that is not a reasonable thing to do.
In Indra Sawhney (supra), the Court held: C
“743. x x x In our opinion, therefore, where the State finds it
necessary — for the purpose of giving full effect to the provision
of reservation to provide certain exemptions, concessions or
preferences to members of backward classes, it can extend the
same under clause (4) itself. In other words, all supplemental and D
ancillary provisions to ensure full availment of provisions for
reservation can be provided as part of concept of reservation
itself. Similarly, in a given situation, the State may think that in the
case of a particular backward class it is not necessary to provide
reservation of appointments/posts and that it would be sufficient
if a certain preference or a concession is provided in their favour. E
This can be done under clause (4) itself. In this sense, clause (4)
of Article 16 is exhaustive of the special provisions that can be
made in favour of “the backward class of citizens”. Backward
Classes having been classified by the Constitution itself as a class
deserving special treatment and the Constitution having itself F
specified the nature of special treatment, it should be presumed
that no further classification or special treatment is permissible in
their favour apart from or outside of clause (4) of Article 16.”
(emphasis supplied by us)
744. The aspect next to be considered is whether clause (4) is G
exhaustive of the very concept of reservations? In other words,
the question is whether any reservations can be provided outside
clause (4) i.e., under clause (1) of Article 16. There are two views
on this aspect. On a fuller consideration of the matter, we are of
the opinion that clause (4) is not, and cannot be held to be, H
152 SUPREME COURT REPORTS [2020] 6 S.C.R.
A exhaustive of the concept of reservations; it is exhaustive of
reservations in favour of backward classes alone. Merely because,
one form of classification is stated as a specific clause, it does not
follow that the very concept and power of classification implicit in
clause (1) is exhausted thereby. To say so would not be correct in
principle. But, at the same time, one thing is clear. It is in very
B
exceptional situations, — and not for all and sundry reasons —
that any further reservations, of whatever kind, should be provided
under clause (1). In such cases, the State has to satisfy, if called
upon, that making such a provision was necessary (in public
interest) to redress a specific situation. The very presence of
C clause (4) should act as a damper upon the propensity to create
further classes deserving special treatment. The reason for saying
so is very simple. If reservations are made both under clause (4)
as well as under clause (1), the vacancies available for free
competition as well as reserved categories would be a
correspondingly whittled down and that is not a reasonable thing
D
to do.
xxx
859. We may summarise our answers to the various questions
dealt with and answered hereinabove:
E (1) x x x
(2) (a) Clause (4) of Article 16 is not an exception to clause (1).
It is an instance and an illustration of the classification inherent in
clause (1). (Paras 741-742)
F (b) Article 16(4) is exhaustive of the subject of reservation in
favour of backward class of citizens, as explained in this judgment.
(Para 743)
(c) Reservations can also be provided under clause (1) of Article
16. It is not confined to extending of preferences, concessions or
exemptions alone. These reservations, if any, made under clause
G
(1) have to be so adjusted and implemented as not to exceed the
level of representation prescribed for ‘backward class of citizens’
— as explained in this Judgment. (Para 745)
860. For the sake of ready reference, we also record our answers
to questions as framed by the counsel for the parties and set out
H in para 681. Our answers question-wise are:
CHEBROLU LEELA PRASAD RAO & ORS. v. 153
STATE OF A.P. & ORS. [ARUN MISHRA, J.]
(1) Article 16(4) is not an exception to Article 16(1). It is an A
instance of classification inherent in Article 16(1). Article 16(4)
is exhaustive of the subject of reservation in favour of
backward classes, though it may not be exhaustive of the
very concept of reservation. Reservations for other classes
can be provided under clause (1) of Article 16.
B
(2) The expression ‘backward class’ in Article 16(4) takes in
‘Other Backward Classes’, SCs, STs and may be some other
backward classes as well. The accent in Article 16(4) is upon
social backwardness. Social backwardness leads to
educational backwardness and economic backwardness. They
are mutually contributory to each other and are intertwined C
with low occupations in the Indian society. A caste can be
and quite often is a social class in India. Economic criterion
cannot be the sole basis for determining the backward class
of citizens contemplated by Article 16(4). The weaker
sections referred to in Article 46 do include SEBCs referred D
to in Article 340 and covered by Article 16(4).
xxx
(7) No special standard of judicial scrutiny can be predicated in
matters arising under Article 16(4). It is not possible or
necessary to say more than this under this question.” E
139. In the instant case, it is not in dispute that the district is a
local area and a unit for the appointment of teachers and reservation is
provided at the district level and as per the Presidential Order under
Article 371D of the Constitution, incumbent of one district cannot stake
claim outside the district for an appointment. The reservations for F
scheduled tribes are covered within the ken of Article 16(4). Thus, no
further preference or classification could have been made under Article
16(1) of the Constitution of India in favour of scheduled tribes as Article
16(4) is exhaustive of the special provisions that can be made in favour
of scheduled castes, scheduled tribes, and other backward classes. G
Reservation for the other classes can be provided under Article 16(1)
and not to scheduled tribes to whom the reservation has been provided
under Article 16(4). Thus, as argued on behalf of respondents, it cannot
be said to be a case of classification made under Article 16(1) of the
Constitution of India. It is a case of tinkering with the percentage of
reservation permissible as per the dictum of Indra Sawhney (supra). H
154 SUPREME COURT REPORTS [2020] 6 S.C.R.
A Other incumbents who are in the reserved classes such as scheduled
castes and other backward classes and even Scheduled Tribes who have
settled after 26.1.1950 beside incumbents of open category, were deprived
of the right to stake claim to obtain public employment as against the
posts in question. In the background of the discussion made in the earlier
part of the judgment, it is crystal clear that the order passed providing
B
100% reservation is arbitrary, illegal, impermissible, and unconstitutional.
140. The 100 percent reservation has been provided. It cannot be
said to be a case of classification that has been made under Article
16(1). Assuming, for the sake of argument, it is to be a case of
classification under Article 16(1), it would have been discriminatory and
C grossly arbitrary without rationale and violative of constitutional mandate.
141. The incumbents of various categories have the right to stake
a claim for the employment of which they have been deprived. Thus, it
is not a matter of classification. The reservation under Article 16(4) was
made. By way of 100% reservation, the employment to others was
D illegally deprived and they have no chance of employment as against the
post of teachers elsewhere because of the order under Article 371D in
which district/zone is a unit. It is a clear case of tinkering with reservation.
In Re: Question No.4: Whether the conditions of eligibility
that is the origin and cut-off date to avail the benefit of reservation
E in the notification is reasonable:
142. It has been provided in the notification that the local scheduled
tribe’s candidates have been defined to be scheduled tribes notified as
under Article 342 of the Constitution of India, if the candidates of
scheduled tribes themselves or their parents have been continuously
F residing in the scheduled areas of the district in which they are residing
from the date i.e., 26th January 1950.
143. The condition of continuously residing in the district is ex
facie arbitrary.Article 15(1) of the Constitution provides that State shall
not discriminate inter alia on the ground of place of birth, however,
G under Article 15(4), it is provided that reservation can be made in favour
of citizens of backward classes i.e.Scheduled Castes and Scheduled
Tribes and special provision can be carved out for their advancement. It
is also open to prescribe for conditions of eligibility on the ground of
residence in a particular area as well as on the educational requirements
but that cannot be fixed arbitrarily and irrationally.
H
CHEBROLU LEELA PRASAD RAO & ORS. v. 155
STATE OF A.P. & ORS. [ARUN MISHRA, J.]
144. In the Presidential Order called the Andhra Pradesh Public A
Employment (Organisation of Local Cadres and Regulation of Direct
Recruitment) Order, 1975, (for short, “1975 Order”) “Local Candidate”
has been defined in para 7 thus:
“7. Local Candidate:- (1) A candidate for direct recruitment to
any post shall be regarded as a local candidate in relation to a B
local area.
(a) in cases where a minimum educational qualification has
been prescribed for recruitment to the post.
(i) if he has studied in an educational institution or educational
institutions in such local area for a period of not less than C
four consecutive academic years ending with the academic
year in which he appeared or, as the case may be, first
appeared for the relevant qualifying examination; or
(ii) where during the whole or any part of the four
consecutive academic years ending with the academic year D
in which he appeared or as the case may be, first appeared
for the relevant qualifying examination he has not studied
in any educational institution, if he has resided in that local
area for a period of not less than four years immediately
preceding the date of commencement of the qualifying E
examination in which he appeared or as the case may be,
first appeared.
(b) In cases where no minimum educational qualification has
been prescribed for recruitment to the post, if he has resided in
that local area for a period of not less than four years F
immediately preceding the date on which the post is notified
for recruitment.
*** *** ***
*** *** ***
(2) A candidate for direct recruitment to any post who is not G
regarded as a local candidate under sub paragraph (1) in relation
to any local area shall.
(a) in cases where a minimum educational qualification has
been prescribed for recruitment to the post.
H
156 SUPREME COURT REPORTS [2020] 6 S.C.R.
A (i) if he has studied in educational institutions in the State
for a period of not less than seven consecutive academic
years ending with academic year in which he appeared or
as the case may be, first appeared for the relevant qualifying
examination, be regarded as a local candidate in relation to
B (1) Such local area where he has studied for the maximum
period out of the said period of seven years; or
(2) where the periods of his study in two or more local
areas are equal, such local areas where he has studied
last in such equal periods;
C
(ii) if during the whole or any part of the seven consecutive
academic years ending with the academic years in which he
appeared or as the case may be first appeared for the relevant
qualifying examination, he has not studied in the educational
institutions in any local area, but has resided in the State during
D the whole of the said period of seven years, be regarded as a
local candidate in relation to
(1) such local area where he has resided for a maximum
period out of the said period of seven years: or
E (2) where the periods of his residence in two or more
local areas are equal, such local areas where he has
resided last in such equal periods;
(b) In cases where no minimum educational qualification has
been prescribed for recruitment to the post, if he has resided in
F the State for a period of not less than seven years immediately
preceding the date on which the post is notified for recruitment,
be regarded as a local candidate in relation to
(i) such local area where he has resided for the maximum
period out of the said period of seven years; or
G (ii) where the periods of his residence in two or more
local areas are equal such local area where he has
resided last in such equal periods.”
145. Para 7(1) of the 1975 Order provided that a candidate shall
be regarded as a local candidate in relation to local area in cases where
H
CHEBROLU LEELA PRASAD RAO & ORS. v. 157
STATE OF A.P. & ORS. [ARUN MISHRA, J.]
a minimum qualification is prescribed for recruitment to the post i.e. a A
person who hasstudied in such local area for a period of not less than
four consecutive academic years orif he has resided in that local area
for a period of not less than four years immediately preceding the date
of commencement of qualifying examination in which he appeared.
146. Para 7(2) of the 1975 Order provides that candidate for direct B
recruitment to any post,who is not regarded as a local candidate in relation
to any local area, shall study for 7 consecutive academic years where a
minimum educational qualification has been prescribed for recruitment
to the post. Condition of Study for less than 7 consecutive academic
years is also provided for a resident for a period of seven years with
C
certain stipulation in para 7(2)(A)(2)(ii).
147. The G.O. in question requires candidate or the parents to
reside in the area continuously w.e.f. 26.1.1950 to date. There is no
rhyme or reason to require continuous residence for last 50 years or
more. It overlooks the rights of various other persons who might have D
settled decades together in the area in question. It is discriminatory vis-
à-vis to the scheduled tribes also settled in the area and it has no purpose
to be achieved and imposes restriction which was not even provided in
the Presidential Order issued under Article 371D of the Constitutionof
India with respect to residential or educational requirements. Thus, it
does not lay down valid conditions. The same is fixed in highly E
unreasonable and arbitrary manner and limits zone of consideration to
miniscule where an opportunity for public employment has to be afforded
to all concerned with reasonable rights.
148. Public employment envisages opportunity to all, who have
been provided reservation is by way of exception to do the compensatory F
jobs. The condition above deprives the scheduled tribes who are permanent
residents of the areas and have settled after the said cut-off date. Thus,
the classification created is illegal, unreasonable, and arbitrary. Making
such a provision that a person should be a resident on or before 26th
January 1950 to date is discriminatory and has the effect of exceeding G
the purpose of providing the reservation. It defeats the rights of other
similar tribes who might have settled after 26th January 1950 in the area
taken care of in the Presidential Order under Article 371-D. It is violative
of Articles 14, 15(1) and 16 of the Constitution and has no rationale with
the purpose sought to be achieved. It creates a class within a class, and
H
158 SUPREME COURT REPORTS [2020] 6 S.C.R.
A the classification made failed to qualify the parameters of Articles 14, 15
and 16 of the Constitution of India.
REVISION OF LISTS
149. Article 341(1) provides for the inclusion of castes, races, or
tribes to be Scheduled Castes in relation to any State. Article 341(2)
B empowers the Parliament to include or exclude from the list of Scheduled
Castes any caste, race or tribe. Article 341(2) is extracted hereunder:
“341.— (1)**
(2) Parliament may by law include in or exclude from the list of
C Scheduled Castes specified in a notification issued under clause
(1) any caste, race or tribe or part of or group within any caste,
race or tribe, but save as aforesaid a notification issued under the
said clause shall not be varied by any subsequent notification.”
150. Identical provisions in relation to the inclusion of Scheduled
D Tribes are provided in Article 342(1), and the Parliament’s power to
amend is provided in Article 342(2). Similar provisions are contained
with respect to socially and educationally backward classes in Article
342A. Scheduled Area is defined in Para 6 of Schedule V, and the power
to amend is provided in Para 7 of Schedule V. It is also provided in Para
3 of the Schedule V that the Governor has to send a report to the President
E regarding the administration of Scheduled Areas. The objective is to
keep track of the progress in the areas. The report is essential for deciding
to make reservations and for its review. Oversightis required to be kept
by the Constitutional authorities, and the Parliament has been given the
right to amend the list and the Schedule.
F 151. In Indra Sawhney (supra), it was held that the State Lists
adopted to provide reservations by the Government are not meant to be
sacrosanct and unalterable. There may be cases where Commissions
appointed by the State may have, in their reports, recommended
modification of such lists by deletion or addition of certain castes,
communities, and classes. Where such reports are available, the State
G
Government is bound to act on that basis with reasonable promptitude.
If the State Government effects any modification or alteration by way
of deletions or additions, the same shall be intimated to the Government
of India forthwith. This Court opined concerning the modifications and
rectification of such list thus:
H
CHEBROLU LEELA PRASAD RAO & ORS. v. 159
STATE OF A.P. & ORS. [ARUN MISHRA, J.]
“853. At the same time, we think it necessary to make the A
following clarification: It is true that the Government of India has
adopted the State lists obtaining as on August 13, 1990 for its own
purposes but that does not mean that those lists are meant to be
sacrosanct and unalterable. There may be cases where
commissions appointed by the State Government may have, in
B
their reports, recommended modification of such lists by deletion
or addition of certain castes, communities and classes. Wherever
such commission reports are available, the State Government is
bound to look into them and take action on that basis with reasonable
promptitude. If the State Government effects any modification or
alteration by way of deletions or additions, the same shall be C
intimated to the Government of India forthwith which shall take
appropriate action on that basis and make necessary changes in
its own list relating to that State. Further, it shall be equally open
to, indeed the duty of, the Government of India — since it has
adopted the existing States lists — to look into the reports of such
D
commission, if any, and pass its own orders, independent of any
action by the State Government, thereon with reasonable
promptitude by way of modification or alternation. It shall be open
to the Government of India to make such modification/alteration
in the lists adopted by way of additions or deletions, as it thinks
appropriate on the basis of the Reports of the Commission(s). E
This direction, in our opinion, safeguards against perpetuation of
any errors in the State lists and ensures rectification of those lists
with reasonable promptitude on the basis of the Reports of the
Commissions already submitted, if any. This course may be adopted
de hors the reference to or advice of the permanent mechanism
F
(by way of Commission) which we have directed to be created at
both Central and State level and with respect to which we have
made appropriate directions elsewhere.”
152. The Court in Rakesh Kumar (supra) emphasised need of
periodical review and held:
G
“37. It is a well-accepted premise in our legal system that ideas
such as “substantive equality” and “distributive justice” are at the
heart of our understanding of the guarantee of “equal protection
before the law”. The State can treat unequals differently with the
objective of creating a level-playing field in the social, economic
H
160 SUPREME COURT REPORTS [2020] 6 S.C.R.
A and political spheres. The question is whether “reasonable
classification” has been made on the basis of intelligible differentia
and whether the same criteria bears a direct nexus with a legitimate
governmental objective. When examining the validity of affirmative
action measures, the enquiry should be governed by the standard
of proportionality rather than the standard of “strict scrutiny”. Of
B
course, these affirmative action measures should be periodically
reviewed and various measures modified or adapted from time to
time in keeping with the changing social and economic conditions.
Reservation of seats in panchayats is one such affirmative action
measure enabled by Part IX of the Constitution.”
C (emphasis supplied by us)
153. Now there is a cry within the reserved classes. By now,
there are affluents and socially and economically advanced classes within
Scheduled Castes and Scheduled Tribes. There is voice by deprived
persons of social upliftment of some of the Scheduled Castes/Tribes, but
D they still do not permit benefits to trickle down to the needy. Thus, there
is a struggle within, as to worthiness for entitlement within reserved
classes of scheduled castes and scheduled tribes and other backward
classes.
In our opinion, it was rightly urged by Dr. Rajeev Dhawan that
E the Government is required to revise the lists. It can be done presently
without disturbing the percentage of reservation so that benefits trickle
down to the needy and are not usurped by those classes who have come
up after obtaining the benefits for the last 70 years or after their inclusion
in the list. The Government is duty-bound to undertake such an exercise
as observed in Indra Sawhney (supra) and as constitutionally envisaged.
F The Government to take appropriate steps in this regard.
154. We answer the questions referred to us thus:
Question No.1:The Governor in the exercise of powers under
Para 5(1), Fifth Schedule of the Constitution, can exercise the powers
concerning any particular Act of the Parliament or the legislature of the
G State. The Governor can direct that such law shall not apply to the
Scheduled Areas or any part thereof. The Governor is empowered to
apply such law to the Scheduled Area or any part thereof in the State
subject to such exceptions and modifications as he may specify in the
notification and can also issue a notification with retrospective effect.
H
CHEBROLU LEELA PRASAD RAO & ORS. v. 161
STATE OF A.P. & ORS. [ARUN MISHRA, J.]
Question No.1(a):The Governor is empowered under Para 5(1), A
Fifth Schedule of the Constitution, to direct that any particular Act of
Parliament or the Legislature of the State, shall not apply to a Scheduled
Area or apply the same with exceptions and modifications. The Governor
can make a provision within the parameters of amendment/modificationof
the Act of Parliament or State legislature. The power to make new
B
laws/regulations, is provided in Para 5(2), Fifth Schedule of the
Constitution for the purpose mentioned therein, not under Para 5(1) of
the Fifth Schedule to the Constitution of India.
Question No.1(b): The power of the Governor under Para 5(1),
Fifth Schedule to the Constitution does not extend to subordinate
legislation, it is with respect to an Act enacted in the sovereign function C
by the Parliament or legislature of the State which can be dealt with.
Question No.1(c):The Governor’spower under Para 5(1) of the
Fifth Schedule to the Constitution is subject to some restrictions, which
have to be observed by the Parliament or the legislature of the State
while making law and cannot override the fundamental rights guaranteed D
under Part III of the Constitution.
Question No.1(d):In exercise of power under Para 5(1) of the
Fifth Schedule to the Constitution of India, the Governor cannot override
the notification issued by the President in the exercise of powers under
Article 371D. The power has to be exercised harmoniously with such E
an order issued under Article 371D, not in conflict thereof.
Question No.2: G.O.Ms. No.3/2000 providing for 100 per cent
reservation is not permissible under the Constitution, the outer limit is 50
per cent as specified in Indra Sawhney (supra).
Question No.3:The notification in question cannot be treated as
F
classification made under Article 16(1). Once the reservation has been
provided to Scheduled Tribes under Article 16(4), no such power can be
exercised under Article 16(1). The notification is violative of Articles 14
and 16(4) of the Constitution of India.
Question No.4: The conditions of eligibility in the notification
with a cut-off date, i.e., 26.1.1950, to avail the benefits of reservation, is G
unreasonable and arbitrary one.
RELIEF:
As a sequel to the quashing of G.O. Ms. No.3 of 2000, the
appointments made in excess of the permissible reservation cannot
H
162 SUPREME COURT REPORTS [2020] 6 S.C.R.
A survive and should be set aside. However, on behalf of State and other
respondents, it was urged that appointments may not be set aside. In the
peculiar circumstances, the incumbents, who have been appointed, cannot
be said to be at fault and they belong to Scheduled Tribes.
We cannot ignore the fact that a similar G.O. was issued by the
B erstwhile State Government of Andhra Pradesh in the year 1986, which
was quashed by the State Administrative Tribunal, against which an appeal
was preferred in this Court, which was dismissed as withdrawn in the
year 1998. After withdrawal of the appeal from this Court, it was expected
of the erstwhile State of Andhra Pradesh not to resort to such illegality
of providing 100% reservation once again. But instead, it issued G.O.
C Ms. No.3 of 2000, which was equally impermissible, even if the A.P.
Regulation of Reservation and Appointment to Public Services Act, 1997
would have been amended, in that event also providing reservation beyond
50% was not permissible. It is rightly apprehended by appellants that the
State may again by way of mis-adventure, resort to similar illegal exercise
D as was done earlier. It was least expected from the functionary like
Government to act in aforesaid manner as they were bound by the dictum
laid down by this Court in Indra Sawhney (supra) and other decisions
holding that the limit of reservation not to exceed 50%. There was no
rhyme or reason with the State Government to resort to 100% reservation.
It is unfortunate that illegal exercise done in 1986 was sought to be
E protected by yet another unconstitutional attempt by issuing G.O.Ms.
No.3 of 2000 with retrospective effect of 1986, and now after that 20
years have passed. In the peculiar circumstance, we save the
appointments conditionally that the reorganised States i.e. the States of
Andhra Pradesh and Telangana not to attempt a similar exercise in the
F future. If they do so and exceed the limit of reservation, there shall not
be any saving of the appointments made, w.e.f. 1986 till date. We direct
the respondents-States not to exceed the limits of reservation in future.
Ordered accordingly.
Resultantly, we allow the appeals, and save the appointments made
G so far conditionally with the aforesaid riders. The cost of appeal is
quantified at Rupees Five Lakhs and to be shared equally by the States
of Andhra Pradesh and Telangana.
Ankit Gyan Appeals allowed.
H
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