Supreme Court of India
SATYAJIT KUMAR & ORS.versusTHE STATE OF JHARKHAND & ORS.
- Citation
- 2022 INSC 785
- Decided
- 2 August 2022
- Disposal
- Case Partly allowed
- Bench
- M R SHAH
Holding
The Governor’s power under Paragraph 5(1) of the Fifth Schedule is subject to Part III of the Constitution and cannot be used to impose 100% reservation or amend subordinate legislation, making the notification ultra vires.
Summary
The Governor of Jharkhand issued a 2016 notification reserving 100% of Class III and IV district‑level teaching posts for local residents of thirteen scheduled districts. This was challenged as violating Articles 14, 16(2), 16(3), 35 and the non‑obstante clause of Paragraph 5(1) of the Fifth Schedule. The High Court declared the notification ultra vires, quashed the appointments and ordered fresh recruitment. On appeal, the Supreme Court held that the Governor’s power under Paragraph 5(1) is not absolute, does not extend to subordinate legislation such as recruitment rules, and cannot be used to impose 100% reservation which breaches the equality provisions of the Constitution. The Court upheld the High Court’s declaration of unconstitutionality but modified the relief, directing a revision of the merit list based on existing cut‑off marks rather than a fresh de‑novo recruitment. The appeals were therefore dismissed with the modified direction.
Issues considered
- Whether the Governor, under Paragraph 5(1) of the Fifth Schedule, can provide 100% reservation for local residents of scheduled areas, contrary to Articles 14, 16(2) and Part III of the Constitution.
- Whether the Governor can modify recruitment rules framed under Article 309 using the power conferred by Paragraph 5(1) of the Fifth Schedule.
- Whether the non‑obstante clause in Paragraph 5(1) allows the Governor to override fundamental rights guaranteed under Part III, including Articles 13, 16(3) and 35.
- Whether a 100% reservation exceeds the permissible ceiling of reservation under Article 16(4) and the Indira Sawhney judgment.
Legislation cited
- Constitution of Indias. Art.13, s. Art.14, s. Art.15, s. Art.16(1), s. Art.16(2), s. Art.16(3), s. Art.244, s. Art.245, s. Art.246, s. Art.254, s. Art.309, s. Art.35, s. Art.371D, s. Fifth Schedule Para.5(1)
- Right of Children to Free and Compulsory Education Act, 2009s. Sec.23
Subjects
ReservationFifth ScheduleGovernor's powersEquality before lawPublic employmentTeacher recruitmentConstitutional lawArticle 16Non‑obstante clauseScheduled areas
Judgment
[2022] 12 S.C.R. 873
SATYAJIT KUMAR & ORS.
v.
THE STATE OF JHARKHAND & ORS.
(Civil Appeal No. 4038 of 2022)
AUGUST 02, 2022
[M. R. SHAH AND B. V. NAGARATHNA, JJ.]
Constitution of India – Para 5(1) of Fifth Schedule; Articles
14, 13(2), 15, 16(2), (3), 35(a-i) – Whether in exercise of powers
conferred under paragraph 5(1) of the Fifth Schedule to the
Constitution, the Governor can make provisions for 100%
reservation in the scheduled Areas/Districts – Held: Non-obstante
clause contained in para 5(1) of the Fifth Schedule of the
Constitution shall be read with respect to power of the Governor to
suspend and/or modify the law made by the Parliament despite
Articles 244 and 245 of the Constitution of India – It cannot be
read as conferring upon the Governor absolute power and/or
unfettered power, notwithstanding the provisions contained in Part
III of the Constitution – In the present case, the impugned Order/
Notification providing 100% reservation for the local residents of
concerned Scheduled Districts/ Areas is beyond the scope and ambit
of powers conferred upon the Governor u/para 5(1) of the Fifth
Schedule of the Constitution – 100% reservation is violative of
Art.16(2) affecting rights of the other candidates/citizens of non-
scheduled areas/Districts guaranteed under Part III of the
Constitution of India – No error committed by High Court in holding
the impugned Notification as unconstitutional and ultra vires to
paragraph 5(1) of the Fifth Schedule and also Articles 14, 13(2),
15 and 16(2) – It is also violative of Articles 16(3) and 35(a-i) –
However, on facts, instead of fresh/de novo recruitment process by
setting aside the appointments already made in the Scheduled
Districts/Areas, the State shall revise the merit list based on the
already published cut off obtained by the last selected candidates
in each TGT subject against the respective categories with respect
to entire State – Respective candidates belonging to the non-
Scheduled Areas and Scheduled Areas (Districts) be adjusted
accordingly on the basis of individual merit of the candidates –
873
874 SUPREME COURT REPORTS [2022] 12 S.C.R.
A Jharkhand Government (Recruitment of Teachers and Non-Teaching
Staff in Secondary Schools & their Service and Condition) Rules,
2015 – Service Law – Constitution of India – Article 142.
Constitution of India – Para 5(1) of Fifth Schedule; Article
309 – Jharkhand Government (Recruitment of Teachers and Non-
B Teaching Staff in Secondary Schools & their Service and Condition)
Rules, 2015 – Whether in exercise of powers under paragraph 5(1)
of the Fifth Schedule to the Constitution, the Governor has the power
to modify the relevant Recruitment Rules framed u/Article 309 –
Held: Exercise of powers by the Governor under para 5(1) of the
C Fifth Schedule of the Constitution of India modifying Recruitment
Rules, 2015 which are framed u/Article which can be said to be
subordinate legislation and cannot be said to be an Act or the Law
made by the Parliament and / or State Legislature is beyond the
scope and ambit of Governor’s power under para 5(1) of the Fifth
Schedule of the Constitution of India.
D
Constitution of India – Para 5(1) of Fifth Schedule – Powers
conferred upon the Governor – Exercise of – Scope and ambit of –
Discussed.
Constitution of India – Para 5 of Fifth Schedule, an exception
– Held: Law made by the Parliament is supreme and shall prevail
E
and every State/State Legislature is bound by the law made by the
Parliament – However, paragraph 5 of the Fifth Schedule to the
Constitution of India is an exception – Notwithstanding the aforesaid
provisions, giving supremacy to the law made by the Parliament,
the Governor may direct that any particular Act of Parliament or of
F 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 – Thus, the
expression “notwithstanding anything in this Constitution” is related
G to the Constitutional provisions regarding the supremacy of the law
made by the Parliament or State Legislature.
Service Law– Illegal and irregular appointment appointments
– Distinction between – Held: There is a distinction between illegal
and irregular appointment and the former cannot be regularized.
H
SATYAJIT KUMAR & ORS. v. THE STATE OF JHARKHAND & 875
ORS.
Partly allowing the appeals, the Court A
HELD: 1.1 As per Article 246(1), notwithstanding anything
contained in clauses (2) and (3), Parliament shall have exclusive
power to make laws with respect to any of the matters enumerated
in List I in the Seventh Schedule (Union List). As per Article
246(2), notwithstanding anything in clause (3), Parliament, and, B
subject to clause (1), the Legislature of any State also shall have
power to make laws with respect to any of the matters enumerated
in List III in the Seventh Schedule (Concurrent List). As per
Article 254 of the Constitution of India, if any provision of law
made by the Legislature of a State is repugnant to any provision
of a law made by Parliament which Parliament is competent to C
enact, or to any provision of an existing law with respect to one
of the matters enumerated in the Concurrent List, then, subject
to the provisions of clause (2), the law made by Parliament,
whether passed before or after the law made by the Legislature
of such State, or, as the case may be, the existing law, shall prevail D
and the law made by the Legislature of the State shall, to the
extent of the repugnancy, be void. Thus, as per the aforesaid
Constitutional provisions, law made by the Parliament is supreme
and shall prevail and every State/State Legislature is bound by
the law. However, paragraph 5 made of by the the Fifth Schedule
to the Constitution of India is an exception. Notwithstanding the E
aforesaid provisions, giving supremacy to the law made by the
Parliament, the Governor may 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 F
exceptions and modifications as he may specify in the notification.
Thus, the expression “notwithstanding anything in this
Constitution” is related to the Constitutional provisions regarding
the supremacy of the law made by the Parliament or State
Legislature. [Para 17.2][922-D-H; 923-A-D]
G
1.2 The non-obstante clause contained in para 5(1) of the
Fifth Schedule of the Constitution shall be read with respect to
power of the Governor to suspend and/or modify the law made by
the Parliament despite Articles 244 and 245 of the Constitution
H
876 SUPREME COURT REPORTS [2022] 12 S.C.R.
A of India. It cannot be read as conferring upon the Governor
absolute power and/or unfettered power, notwithstanding the
provisions contained in Part III of the Constitution. The
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
B
the incumbents, and it is not the prerogative of a few. The citizens
have equal rights, and the total exclusion of others by creating
an opportunity for one class is not contemplated by the founding
fathers of the Constitution of India. [Paras 18.5 and 19][926-D-F,
G-H]
C Indra Sawhney & Ors. v. Union of India & Ors. 1992
Supp (3) SCC 217 : [1992] 2 Suppl. SCR 454 –
followed.
1.3 Applying law laid down by the Constitution Bench of
this Court in the case of Chebrolu Leela Prasad Rao, to the facts
D of the case on hand, the impugned Order/ Notification No.5938
and the Order No.5939 dated 14.07.2016 providing 100%
reservation for the local residents of concerned Scheduled
Districts/ Areas only can be said to be (1) beyond the scope and
ambit of powers conferred upon the Governor under para 5(1) of
E the Fifth Schedule of the Constitution of India; (2) 100%
reservation provided for the local residents of the concerned
Scheduled Districts / Areas only would be violative of Article 16(2)
of the Constitution of India and affecting rights of the other
candidates / citizens of non-scheduled areas / Districts guaranteed
under Part III of the Constitution of India; (3) the exercise of
F powers by the Governor under para 5(1) of the Fifth Schedule of
the Constitution of India modifying Recruitment Rules, 2015
which are framed under Article 309 of the Constitution of India
which can be said to be subordinate legislation and cannot be
said to be an Act or the Law made by the Parliament and / or
G State Legislature is beyond the scope and ambit of Governor’s
power under para 5(1) of the Fifth Schedule of the Constitution
of India. [Para 20][928-D-H; 929-A]
Chebrolu Leela Prasad Rao & Ors v. State of A.P. &
Ors. (2021) 11 SCC 401 – followed.
H
SATYAJIT KUMAR & ORS. v. THE STATE OF JHARKHAND & 877
ORS.
1.4 What is required to be considered is the ratio decidendi A
and law laid down by this Court. There is clear law laid down by
Constitution Bench of this Court. The decision of the Constitution
Bench which is rendered after considering the relevant
constitutional provisions and a number of decisions of this Court
is as such binding on this Court. It cannot be said that the relevant
B
Constitutional provisions and/or binding decisions of this Court
have not been dealt with and/or considered by this Court. The
Constitutional Bench decision of this Court in the case of Chebrolu
Leela Prasad Rao also cannot be said to be per incuriam ignoring
and/or taking a contrary view than any of the binding decision of
this Court. This Court is bound by the law laid down by this Court, C
more particularly, a Constitution Bench decision of this Court.
There is no reason not to follow the binding Constitution Bench
decision of this Court in the case of Chebrolu Leela Prasad Rao.
There is no reason to take a different view than the view taken
by the Constitution Bench of this court in the case of Chebrolu
D
Leela Prasad Rao. [Para 21][929-C-F]
1.5 It may be true that so far as basic education (at the
level of primary section) is concerned, it may help student at the
primary level (while providing basic education) to be taught in
their own tribal language. But the same principle may not be
applicable when question is of providing education at higher level E
viz. above 5th standard. Therefore, if the candidates belonging
to other areas (non-Scheduled Areas/ Districts) are given an
opportunity to impart education (who may be more meritorious
than the candidates belonging to the Scheduled Areas / Districts)
than it will be more beneficial to the students belonging to the F
Scheduled Areas and their quality of the education shall certainly
improve. The quality of education of the school-going children
cannot be compromised by giving 100% reservation in favour of
the teachers of the same/some districts and prohibiting the
appointment to more meritorious teachers. At this stage, it is
required to be noted that even the impugned Order/Notification G
dated 14.07.2016 and the advertisement providing 100%
reservations for local residents of concerned Scheduled Areas/
Districts can be said to be violative of Article 13 of the Constitution
of India also. The impugned Order/Notification making 100%
H
878 SUPREME COURT REPORTS [2022] 12 S.C.R.
A reservation for the local resident of the concerned Scheduled
Districts/Areas is violative of Article 16(2) of the Constitution of
India as it affects the fundamental rights guaranteed to the
candidate belonging to the non-Scheduled Areas guaranteed
under part III of the Constitution of India. As per Article 13 of
the Constitution of India, the State shall not make any law which
B
takes away or abridges the rights conferred by this Part and any
law made in contravention of Article 13(2) shall to the extent of
the contravention, be void. Therefore, also impugned Notification/
Order/Advertisement making 100% reservation for the local
resident of the concerned Scheduled Areas / Districts shall be
C ultra vires Article 13 of the Constitution of India and shall be
void. [Paras 22.1 and 23][930-H; 931-A-C]
1.6 Even under Article 16(3) of the Constitution of India, it
is the Parliament alone, which is authorized to make any law
prescribing, in regard to a class or classes of employment or
D appointment to an office under the Government of, or any local
or other authority within, a State of Union Territory, any
requirement as to residence within the State or Union territory
prior to such employment or appointment. As per Article 35 of
the Constitution of India, notwithstanding anything contained in
the Constitution, the Parliament shall have and the Legislature
E of a State shall not have the power to make laws with respect to
any of the matters which, under clause (3) of Article 16 may be
provided for law made by Parliament. Therefore, impugned
Notification/Order making 100% reservation for the local resident
of the concerned Scheduled Area/Districts (reservation on the
F basis of resident) is ultra vires to Article 35 r/w Article 16(3) of
the Constitution of India. [Para 24][931-F-H; 932-A-B]
1.7 Applying the law laid down by this Court in the case of
Chebrolu Leela Prasad Rao and in view of the above discussion
and for the reasons stated above, the High Court has not
G committed any error in concluding and holding that the
Notification No.5938 and Order No.5939 dated 14.7.2016 issued
by the State Government providing 100% reservation for the
local residents of concerned Scheduled Districts/Areas as being
unconstitutional and ultra vires Articles 14, 13(2), 15 and 16(2)
H
SATYAJIT KUMAR & ORS. v. THE STATE OF JHARKHAND & 879
ORS.
of the Constitution of India. It is rightly observed and held that A
said Notification and Order would also violate Articles 16(3) and
35(a-i) of the Constitution of India. The High Court has also
rightly observed and held that aforesaid Notification and Order
is ultra vires to paragraph 5(1) of the Fifth Schedule of the
Constitution of India. This Court is in complete agreement with
B
the view taken by the High Court. Once the Notification/Order
dated 14.07.2016 are held to be ultra vires, as a necessary
consequences, appointments made pursuant to such
unconstitutional Notification/Order shall have to be set aside and
such appointments as such cannot be regularized. There is a
distinction between illegal and irregular appointment and the C
former cannot be regularized. [Para 25][932-B-D]
1.8 In the present case, impugned Notification / Order is of
the year 2016. The TGT recruitment process was initiated vide
advertisement dated 28.12.2016 as modified on 04.02.2017 and
same came to be challenged during the pendency of the D
recruitment process in the year 2017 itself. It is also required to
be noted that by order dated 21.2.2019 the Division Bench of the
High Court directed that notice be published in the daily
newspapers having wide circulation about institution of the writ
petition so that the person interested may intervene in the writ
petition. Pursuant to such notice, several interlocutory E
applications/intervener applications came to be filed, which came
to be allowed by the High Court. Thereafter, by order dated
18.09.2019, taking into consideration the question of
Constitutional importance involved in the matters, the Division
Bench of the High Court referred the matter to be decided by a F
Larger Bench. By the same order dated 18.09.2019, the High
Court stayed the further implementation and operation of the
impugned Notification No.5938 and Order No.5939 dated
14.7.2016, subject to the appointments already made, if any. Thus,
from the aforesaid it can be seen that the original writ petitioners
are always vigilant and diligent and approached the High Court G
at the first available opportunity. Their valuable right for
consideration of their cases for appointment in the Scheduled
Districts / Areas have been taken away. They have been
successful before the High Court. Therefore, in the facts and
H
880 SUPREME COURT REPORTS [2022] 12 S.C.R.
A circumstance of the case, the decision relied upon on behalf of
the appellants to make impugned judgment and order passed by
the High Court prospectively shall not be applicable to the facts
of the case on hand. In the facts and circumstances of the case,
the prayer on behalf of the appellants herein to make the impugned
judgment and order passed by the High Court applicable
B
prospectively, deserves to be rejected and is accordingly rejected.
[Para 26.3][933-F-H; 934-A-C]
Kailash Chand Sharma v. State of Rajasthan & Ors.
(2002) 6 SCC 562 : [2002 1 Suppl. SCR 317 – held
inapplicable.
C
1.9 However, at the same time and in the facts and
circumstances of the case and more particularly, by quashing and
setting aside the appointments already made there is a likelihood
of more complication which would not be in the larger public
interest. Hence, this is a fit case to mould the relief. Apart from
D the fact that the appellants herein – selected candidates belonging
to the Scheduled Districts/Areas are already working since last
about three years, in case appointments already made are not
protected then thousands of schools in the State of Jharkhand
would be without teachers and the ultimate sufferers would be
E the children of tribal areas. In view of the impugned judgment
and order passed by the High Court, by which, the High Court
has held all the appointments made in Scheduled Districts/Areas
illegal and has further directed to go for fresh recruitment, the
State will have to undergo fresh recruitment process which may
take considerable time and, in the meantime, there shall be
F vacancies and number of schools in the tribal areas shall be without
teachers. Therefore, the Court has to strike a balance between
the rights of the original writ petitioners as well as persons/
teachers already appointed (whose appointments are held to be
illegal) and also the public interest. Hence, while moulding the
G relief, instead of initiating a fresh recruitment process, if directions
are issued for preparation of fresh selection list based on revised
merit and based on already published cut off obtained by the last
selected candidate in each TGT subject against respective
categories., it will meet ends of justice and striking the balance
between the competing rights so that persons already appointed
H
SATYAJIT KUMAR & ORS. v. THE STATE OF JHARKHAND & 881
ORS.
may not have to lose their employment/job and at the same time A
the candidates belonging to the non-Scheduled Districts/Areas
may also get their opportunity for appointment as a teacher on
merits in the Scheduled Districts/Areas. No useful purpose will
be served to go in for fresh/de novo recruitment process as
directed by the High Court in the impugned judgment and order.
B
In view of the above discussion and for the reasons stated above,
the common impugned judgment and order passed by the High
Court declaring the impugned Notification/Order dated
14.07.2016 as unconstitutional and ultra vires Articles 14, 16(2),
16(3) and 35(a-i) of the Constitution of India is upheld. This Court
is in complete agreement with the view taken by the High Court. C
However, at the same time, the directions issued by the High
Court in the impugned judgment and order while setting aside
all the appointments made pursuant to the Notification / Order
dated 14.07.2016 and Advertisement No.21 of 2016 dated
28.12.2016 as modified on 04.12.2017 and to go in for fresh/de
D
novo recruitment process for the Scheduled Areas/Districts is
hereby modified. It is now directed that instead of fresh/de novo
recruitment process by setting aside the appointments already
made in the Scheduled Districts/Areas, the State shall revise the
merit list based on the already published cut off obtained by the
last selected candidates in each TGT subject against the E
respective categories with respect to entire State and respective
candidates belonging to the non-Scheduled Areas and Scheduled
Areas (Districts) shall be adjusted accordingly on the basis of
individual merit of the candidates. The present directions are
issued considering the peculiar facts and circumstances of the
F
case and more particularly considering the fact that there are
already vacant posts of teachers in the State (in both Scheduled
and non-Scheduled Area). If the appointments already made are
set aside and fresh de novo recruitment process for such posts
is initiated, a number of schools in the Scheduled Areas shall be
without any teacher which may ultimately affect larger public G
interest and education of concerned children in the Scheduled
Areas. Present direction is issued in exercise of powers under
Article 142 of the Constitution of India in the larger public interest
of Scheduled Areas/Districts. [Paras 27 and 28][934-D-H; 935-
A-H; 936-A]
H
882 SUPREME COURT REPORTS [2022] 12 S.C.R.
A Secretary, State of Karnataka and Ors. v. Umadevi (3)
and Ors. (2006) 4 SCC 1 : [2006] 3 SCR 953 – relied
on.
A.V.S Narsimha Rao & Ors v. State of Andhra Pradesh
& Anr. (1969) 1 SCC 839 : [1970] 1 SCR 115; Dr.
B
Pradeep Jain & Ors v. Union of India & Ors. (1984) 3
SCC 654 : [1984] 3 SCR 942; Rajesh Kumar Gupta &
Ors. v. State of UP & Ors. (2005) 5 SCC 172 : [2005]
3 SCR 1171; State of Orissa & Ors. v. Sudhir Kumar
Bishwal & Ors. (1994) Supp 3 SCC 245 : [1994]
C 2 Suppl. SCR 665; AVS Narasimha Rao and Ors. v. The
State of A.P. [1970] 1 SCR 115; Kripal Bhagat v. State
of Bihar [1970] 3 SCR 233 Puranlal Lakhanpal v.
President of India AIR 1961 SC 1519 : [1962] 1 SCR
688; Kesavananda Bharati v. State of Kerala (1973) 4
D SCC 225 : [1973] Suppl. SCR 1; Dr. Jaishri Laxmanrao
Patil v. Chief Minister 2021 SCC Online SC 362 P.
Rajendran v. State of Madras [1968] 2 SCR 786; N.
Vasundhara v. State of Mysore (1971) 2 SCC 22;
Jayshree v. State of Kerala (1976) 3 SCC 730 : [1977]
E 1 SCR 194; Hanuman Dutt Shukla v. State of Uttar
Pradesh (2018) 16 SCC 447; K Madhav Reddy v. State
of A.P (2014) 6 SCC 537 : [2014] 7 SCR 348; R.K.
Sabharwal v. State of Punjab (1995) 2 SCC 745 : [1995]
2 SCR 35; Baburam V.CC Jacob (1999) 3 SCC 362;
Union of India and Anr. v. Tulsiram Patel (1985) 3
F
SCC 398 : [1985] 2 Suppl. SCR 131; J K Spinning
and Weaving Mills Co. Ltd v. State of UP AIR 1961
SC 1170 : [1961] 3 SCR 185; Anupal Singh v. State
of UP (2020) 2 SCC 173 : [2019] 12 SCR 1071; State
of UP and Ors. v. Anand Kumar Yadav and Ors. (2018)
G 13 SCC 560 : [2017] 10 SCR 428; Renu v. District &
Sessions Judge (2014) 15 SCC 731; State of MP v.
Dharam Bir (1998) 6 SCC 165 : [1998] 3 SCR 511;
Syed Khalid Rizvi and Ors. v. Union of India and Ors.
1993 Supp. (3) SCC 575 : [1992] 3 Suppl. SCR 180;
H
SATYAJIT KUMAR & ORS. v. THE STATE OF JHARKHAND & 883
ORS.
Surajprakash Gupta and Ors. v. State of J & K and A
Ors. (2000) 7 SCC 561 : [2000] 3 SCR 807; R.S. Garg
v. State of UP and Ors. (2006) 6 SCC 430 : [2006]
4 Suppl. SCR 120; Rajesh Kumar v. State of Bihar
(2013) 4 SCC 690 : [2013] 4 SCR 753; Ran Vijay Singh
v. State of UP (2018) 2 SCC 357 : [2017] 12 SCR 95;
B
Waman Rao v. Union of India (1981) 2 SCC 362 : [1981]
2 SCR 1; I.R. Coelho (Dead) by LRs. v. State of T.N.
(2007) 2 SCC 1 : [2007] 1 SCR 706; S.R. Chaudhuri
v. State of Punjab (2001) 7 SCC 126 : [2001] 1 Suppl.
SCR 621; Ajay Hasia V.Khalid Mujib Sehravadi (1981)
1 SCC 722 : [1981] 2 SCR 79; E.P. Royappa v. State of C
Tamil Nadu (1974) 2 SCC 3 : [1974] 2 SCR 348;
Maneka Gandhi v. Union of India (1978) 1 SCC 248 :
[1978] 2 SCR 621; Ramana Dayaram Shetty v.
International Airport Authority of India and Ors. (1979)
3 SCC 489 : [1979] 3 SCR 1014; Neelima Misra v.
D
Harinder Kaur Paintal (1990) 2 SCC 746 : [1990]
2 SCR 84; Peerless General Finance and Investment
Co. Ltd v. Reserve Bank of India (1992) 2 SCC 343 :
[1992] 1 SCR 406 – referred to.
Case Law Reference
E
[2002] 1 Suppl. SCR 317 held inapplicable Para 3.8
[1970] 1 SCR 115 referred to Para 3.8
[1984] 3 SCR 942 referred to Para 3.8
[2005] 3 SCR 1171 referred to Para 3.8 F
[1994] 2 Suppl. SCR 665 referred to Para 3.8
[1992] 2 Suppl. SCR 454 followed Para 3.8
(2021) 11 SCC 401 followed Para 3.8
[1970] 1 SCR 115 referred to Para 7.7 G
[1970] 3 SCR 233 referred to Para 7.9
[1962] 1 SCR 688 referred to Para 7.9
[1973] Suppl. SCR 1 referred to Para 7.13
H
884 SUPREME COURT REPORTS [2022] 12 S.C.R.
A [1968] 2 SCR 786 referred to Para 8.2
(1971) 2 SCC 22 referred to Para 8.3
[1977] 1 SCR 194 referred to Para 8.3
(2018) 16 SCC 447 referred to Para 10
B [2014] 7 SCR 348 referred to Para 11.1
[1995] 2 SCR 35 referred to Para 11.1
(1999) 3 SCC 362 referred to Para 11.1
[1985] 2 Suppl. SCR 131 referred to Para 12.3
C
[1961] 3 SCR 185 referred to Para 12.5
[1994] 2 Suppl. SCR 665 referred to Para 13.4
[1970] 1 SCR 115 referred to Para 13.5
[2005] 3 SCR 1171 referred to Para 13.5
D
[1984] 3 SCR 942 referred to Para 13.7
[2019] 12 SCR 1071 referred to Para 13.9 (I)
[2017] 10 SCR 428 referred to Para 13.9 (II)
(2014) 15 SCC 731 referred to Para 13.9( III)
E
[1998] 3 SCR 511 referred to Para 13.9 (IV)
[1992] 3 Suppl. SCR 180 referred to Para 13.9 (V)
[2000] 3 SCR 807 referred to Para 13.9 (VI)
F [2006] 4 Suppl. SCR 120 referred to Para 13.9 (VII)
[2006] 3 SCR 953 relied on Para 13.9 (VIII)
[2013] 4 SCR 753 referred to Para 13.9
[2017] 12 SCR 95 referred to Para 13.10
G [1973] Suppl. SCR 1 referred to Para 18.4
[1981] 2 SCR 1 referred to Para 18.4
[2007] 1 SCR 706 referred to Para 18.4
[2001] 1 Suppl. SCR 621 referred to Para 18.4
H [1981] 2 SCR 79 referred to Para 18.4
SATYAJIT KUMAR & ORS. v. THE STATE OF JHARKHAND & 885
ORS.
[1974] 2 SCR 348 referred to Para 18.4 A
[1978] 2 SCR 621 referred to Para 18.4
[1979] 3 SCR 1014 referred to Para 18.4
[1990] 2 SCR 84 referred to Para 18.4
[1992] 1 SCR 406 referred to Para 18.4 B
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 4038
of 2022.
From the Judgment and Order dated 21.09.2020 of the High Court
of Jharkhand at Ranchi in Writ Petition (C) No.1387 of 2017.
C
With
Civil Appeal Nos.4039, 4040, 4041, 4042, 4043, 4044, 4045, 4046,
4047, 4048, 4049, 4050 and 4079 of 2022.
Vikas Singh, Rajeev Dhavan, R. Venkataramani, P.S. Patwalia,
Ms. Vibha Datta Makhija, Kapil Sibal, Sunil Kumar, Arunabh Chowdhury, D
Gopal Sankaranarayanan, Ajit Kumar Sinha, Mrs. V. Mohana, Colin
Gonsalves, Pallav Shishodia, Ranjit Kumar, Sr. Advs., Prashant Shukla,
Suyash Srivastava, Ms. Shreya Mishra, Praveen Gaur, Karan Mamagain,
Prakhar Srivastava, Chitwan Singhal, Praveen Vivnesh, Ms. Pratibha
Shukla, Satyajeet Kumar, Ms. Pragya Baghel, Vishnu Sharma, Kumar E
Anurag Singh, Kumar Abhishekh, Shashank, Ms. Pallavi Langar, Mithilesh
Kumar Singh, Mrs. Manju Singh, Tarun Verma, Raj Mani Mishra, Kabir
Dixit, Amit Agrawal, Vigyaan Shah, Ms. Radhika Yadav, Akshit Gupta,
Harinder Neel, Ms. Rohini Prasad, Puneet Jain, Vigyan Shah, Ms. Christi
Jain, Ms. Shruti Singh, Akshit Gupta, Umang Mehta, Yogit Kamat,
Kamalesh Sharma, Harender Neel, Pukhraj Chawla, Mann Arora, Yash F
Joshi, Ms. Sarah Sharma, Ms. Pragya Sethi, Anubhav Kumar for M/s.
Manoj Swarup And Co., Vikram Singh Kushwaha, Roopenshu Pratap
Singh, Vikas Gothwal, Surjeet Singh, Vishwa Pal Singh, D.D.Sharma,
Sunil Kumar Pandey, Mohan Lal Sharma, K. Parameshwar, Priyank
Upadhyay, Krishna Kumar Singh, Sahil Bhalaik, Ms. Shomila Bakshi, G
Govind Jee, Omanakuttan K. K., Prashant Bhushan, Ms. Alice Raj,
Brajesh Pandey, Anilendra Pandey, Chetan Joshi, Siddharth Seem,
Sandeep Kumar Dwivedi, Ms. Savitri Verma, Rakesh Mishra, Ravi
Chandra Prakash, Purushottam Sharma Tripathy, Lalit Kr. Singh, Vigyaan
Shah, Mukesh Kumar Singh, Ms. Vani Vyas for M/s Ravi Chandra
H
886 SUPREME COURT REPORTS [2022] 12 S.C.R.
A Prakash & Co., Hitesh Kumar Sharma, S.K. Rajora, Akhileshwar Jha,
E. Vinay Kumar, Advs. for the appearing parties.
The Judgment of the Court was delivered by
M. R. SHAH, J.
B 1.0. Feeling aggrieved and dissatisfied with the impugned common
judgment and order dated 21.09.2020 passed in Writ Petition No.1387 of
2017 and other allied writ petitions and connected applications, by which,
the High Court has allowed said writ petitions and has observed, held
and declared that the Notification No.5938 and the Order No.5939 dated
14.07.2016 issued by the State of Jharkhand and Advertisement No.21
C of 2016 dated 28.12.2016 modified by the Advertisement No.21 of 2016
published on 04.12.2017, by the State Government through Department
of Personnel, Administrative Reforms and Rajbhasha inviting application
for appointment to the posts of Trained Graduate Teacher in the
Government Secondary Schools to the extent of making 100% reservation
D for the local candidates / residents of Thirteen Scheduled Areas in the
State of Jharkhand as illegal, ultra vires and unconstitutional and
consequently has quashed the appointments of the Trained Graduate
Teachers made pursuant to the aforesaid advertisement, in the Scheduled
Districts relating to the local residents of those Districts, the original
respondents – candidates belonging to the Thirteen Scheduled Districts
E have preferred present appeals.
2.0. Civil Appeal No.4043 of 2022 has been preferred by the
petitioners who were not party before the High Court challenging the
action of the State Government in not appointing them. It is the case on
behalf of the petitioners that the State Government has misinterpreted
F the judgment and order passed by the High Court passed in Writ Petition
No.1387 of 2017. It is their case that the dispute before the High Court
was with regard to the appointment of the Trained Graduate Teachers
and advertisement Notification No.21 of 2016. However, so far as
petitioners are concerned, according to them, they are eligible applicants
G of the advertisement nos.1 of 2017 and 2 of 2017 for the post of Lower
Divisional Clerks (Collectorate cadre) – District Level Post Panchayat
Secretary- District Level Posts and Lower Divisional Clerks- State Level
Post, State Stenographer – State Level Post and in no manner concerned
with the issue agitated before the High Court. It is the case on behalf of
the petitioners that they are awaiting the final results with respect to the
H
SATYAJIT KUMAR & ORS. v. THE STATE OF JHARKHAND & 887
ORS. [M. R. SHAH, J.]
aforesaid posts and have also undergone document verification procedure A
carried out by the Jharkhand Staff Selection Committee in the year 2019.
2.1. Civil Appeal No.4048 of 2022 has been preferred by the State
of Jharkhand challenging the order passed by the High Court dated
4.3.2022 passed in Contempt Case No. 109 of 2021. It is to be noted
that Civil Appeal No.4048 of 2022 is with respect to the candidates B
belonging to the Non-Scheduled Districts who earlier filed writ petitions
before the High Court and the High Court directed to issue appointments
orders to the candidates belonging to the Non-Scheduled Districts. It is
required to be noted that by the interim order passed by the High Court
further contempt proceedings before the High Court have been stayed.
C
2.2. Civil Appeal No.4050 of 2022 has been preferred by the
candidates belonging to the Scheduled Districts and who applied as a
Trained Teacher pursuant to the aforesaid advertisement and who are
not appointed after interim order passed by the High Court dated
18.09.2019.
D
3.0. Facts leading to the present appeals in a nutshell are as under:
3.1. Pursuant to the Presidential Notification dated 11.04.2007 13
Districts in the State of Jharkhand had been declared as Scheduled
Areas. That the said Notification had been issued in exercise of powers
conferred by the sub-paragraph (2) of paragraph 6 of the Fifth Schedule E
to the Constitution of India. Pursuant to the said Notification, following
Districts in the State of Jharkhand had been declared as Scheduled Areas
/ Districts.
1. Ranchi District.
2. Lohardagga District. F
3. Gumla District.
4. Simdega District.
5. Latehar District.
6. East-Singhbhum District. G
7. West-Singhbhum District.
8. Saraikela- Kharsawan District.
9. Sahebganj District.
H
888 SUPREME COURT REPORTS [2022] 12 S.C.R.
A 10. Dumka District.
11. Pakur District.
12. Jamtara District.
13. Palamu District- Rabda and Bakoriya Panchayats of
B Satbarwa Block.
14. Godda District- Sunderpahari and Boarijor Blocks.
(hereinafter referred to as the “Scheduled Areas”).
3.2. That the State Government issued “Jharkhand Government
(Recruitment of Teachers and Non-Teaching Staff in Secondary Schools
C
& their Service and Condition) Rules, 2015 by means of which the
conditions / qualifications for appointment of teachers had been
prescribed, vide Notification dated 1.3.2016.
That pursuant to the order passed by the High Court in Writ Petition
(PIL) No. 4806 of 2016, vide Circular dated 18.04.2016 the State
D
Government prescribed definition of “Local Resident of Jharkhand”. As
per the said Circular, the Local Resident of Jharkhand would be deemed
such Indian Citizens who would fulfill any one condition out of the
following …….
“(i) .he would have been residing within the geographical
E limits of the State of Jharkhand and either his own name or
name of his forefather would have been lying recorded in
Survey Khata. In the cases of landless, he would be identified
by the concerning Gram Sabha which would be based on
language, culture & traditions prevailing in the State of
F Jharkhand.
(ii) would have been residing within the geographical limits
of the State of Jharkhand for the past 30 years or more due
to any trade, employment and other reasons and would have
earned immovable property or such person has wife/husband
G /child and affirm commitment to stay in Jharkhand State.
(iii) would have been appointed & working officer/employee
under the Government of State of Jharkhand / institutions
being run/recognized by the State Government, Corporation
etc. Or has wife/husband /child and affirm commitment to stay
H in Jharkhand state.
SATYAJIT KUMAR & ORS. v. THE STATE OF JHARKHAND & 889
ORS. [M. R. SHAH, J.]
(iv) Officer/employee of the Government of India, working in A
the State of Jharkhand or have 188 wife/husband /child and
affirm commitment to stay in Jharkhand state.
(v) Person appointed at any constitutional or statutory posts
in the State of Jharkhand or have wife/husband /child and
affirm commitment to stay in Jharkhand state. B
(vi) Such person who would have born in the State of
Jharkhand and completed his whole education upto
Matriculation or its equivalent level from the recognized
institutions established in the state of Jharkhand & affirm
commitment to stay in Jharkhand state.” C
3.3. That thereafter, the State Government came out with
Notification No. 5938 and Order No. 5939 dated 14.7.2016 directing
that in Thirteen Scheduled Districts of the State, the local residents of
the concerned Districts (Thirteen Scheduled Districts) only shall be eligible
to be appointed on the District Cadre Class III and Class IV posts, for a D
period of ten (10) years from the date of publication of the Notification.
It appears that said order had been issued by the Governor of Jharkhand
in exercise of powers conferred under sub-paragraph(1) of paragraph 5
of the Fifth Schedule of the Constitution of India. In the order dated
14.07.2016 it is observed as under:
E
“And whereas, the scheduled Area in the State are
characterised by low Human Development Indices,
backwardness, remoteness poverty and whereas the social
indicators of the Scheduled Areas are on an average, inferior
to the average of social indicators in the State due to uneven
topography, lack of water resources, loss in canopy coverage F
of forest and uncontrolled rapid industrialization;
And whereas, recognizing the factors identified above, the
Tribal Advisory Council of Jharkhand has recommended
issuing of a notification by the Governor for suspension of
eligibility conditions as enshrined in various appointment rules G
for the appointment of class 3 and class 4 posts at district
level for a period of 10 years in the 13 districts namely-
Sahebganj, Pakur, (Dumka, Jamtara, Latehar, Ranchi, Khunti,
Gumla, Lohardagga simdega, East Singhbhum, West
Singhbhum and Sraikela-kharsawan for appointment of cent-
H
890 SUPREME COURT REPORTS [2022] 12 S.C.R.
A percent District level class -3 and class-4 posts by the local
residents of the district concerned;
And Whereas, the Governor of Jharkhand in order to improve
the quality of people in the Scheduled Areas, by providing
additional opportunities of employment, in favour of the local
B residents of Scheduled Areas.”
3.4. That thereafter, further order came to be published on
11.11.2016 specifically making it clear that in compliance of Notification
No.5938 dated 14.07.2016, local residents of concerned Districts only
are deemed eligible for appointment in the vacant post of District- Level
C Class III and Class IV in 13 notified Districts out of 24 Districts of the
State and appointment of people from other Districts/ other States is not
permissible in these Districts. Meaning thereby, it was made clear that
the candidate belonging to the Non-Scheduled Districts cannot participate
in the process of selection in the Scheduled Districts.
D 3.5. That pursuant to the advertisement no. 21 of 2016 published
on 28.12.2016 as modified by advertisement dated 4.2.2017 which was
issued in pursuance of the Notification No.5938 dated 14.07.2016,
applications were invited for filling up 17,784 Trained Graduate Teachers
out of which 13,398 posts (75% posts of total advertised posts) were to
be filled up by direct recruitment and remaining 25% posts i.e., 4386
E posts were reserved for primary teachers. The said advertisement was
issued through Jharkhand State Staff Selection Commission (hereinafter
referred to as the “JSSC”). In the advertisement in para 5(iii), it was
stated that so far as vacancies in the Scheduled Districts and State are
concerned, only the local residents of those Scheduled Districts shall be
F entitled to apply. As per the para 5(i) of the advertisement, a candidate
could apply against the vacancy in only one District of his / her choice.
At this stage, it is required to be noted that in all 8423 posts were
advertised for filling up the vacancies in the Thirteen Scheduled Districts
in the State, whereas 9149 posts were advertised for the remaining non-
scheduled districts in the State.
G
3.6. Several candidates applied for the posts and undergone the
selection process. The results were published and process of
appointments were initiated by the State Government. Candidates
belonging to the Non-Scheduled Districts who were prevented making
application for the vacancy in the Scheduled Districts, preferred writ
H
SATYAJIT KUMAR & ORS. v. THE STATE OF JHARKHAND & 891
ORS. [M. R. SHAH, J.]
petition before the High Court by way of present writ petition challenging A
the constitutional validity of the Notification and order issued by the
State Government bearing Notification No. 5938 and Order No.5939
dated 14.07.2016, by which, only the local residents of the concerned
Scheduled Districts were made eligible for appointment on the District
Cadre Class III and Class IV posts for a period of 10 years. The original
B
writ petitioners- candidates belonging to the Non-Scheduled Candidates
also challenged the subsequent Advertisement No.21 of 2016, as modified
by the Advertisement No.21 of 2016, inviting applications for appointment
to the posts of Trained Graduate Teacher in the Government Secondary
Schools more particularly, para 5(iii) of the said advertisement by which,
it was stated that the so far as vacancies in the Scheduled Districts of C
the State are concerned, only the local residents of those Scheduled
Districts shall be eligible to apply.
3.7. By order dated 21.2.2019 the Division Bench of the High
Court directed that the notices be published in the Daily Newspaper
having wide circulation about institutions of writ petitions so that the D
person interested may intervene in the writ petitions. Pursuant to such
notices, several interlocutory applications / intervener applications came
to be filed, which came to be allowed by the High Court.
Taking into consideration the question of Constitutional importance
involved in these matters, by order dated 18.09.2019 the Division Bench E
of the High Court referred the matter to be decided by the Larger Bench.
By the same order dated 18.09.2019, the High Court stayed further
implementation and operation of the impugned Notification No.5938 and
Order No.5939 dated 14.7.2016, subject to the appointments already
made, if any.
F
3.8 It was the case on behalf of the original writ petitioners –
candidates belonging to the Non-Scheduled Districts that the aforesaid
Notification issued in exercise of powers conferred in para 5(i) of the
Fifth Schedule of the Constitution of India is violative of Articles 14 &
16 of the Constitution of India. Article 13(2) of the Constitution of India
was also pressed into service. Heavy reliance was placed on Article G
16(2) of the Constitution of India. It was submitted on behalf of the
original writ petitioners that in the garb of the non-obstante clause in
para 5(i) of the Fifth Scheduled of the Constitution, the Governor cannot
infringe and / or affect fundamental rights guaranteed under Part III of
the Constitution and that there cannot be any 100% reservation, so as to H
892 SUPREME COURT REPORTS [2022] 12 S.C.R.
A make only residents of a particular area to be eligible for appointment to
a public post. Heavy reliance was placed on the decisions of this Court
in the case of Kailash Chand Sharma Vs. State of Rajasthan &
Ors. reported in (2002) 6 SCC 562; A.V.S Narsimha Rao & Ors
Vs. State of Andhra Pradesh & Anr. reported in (1969) 1 SCC 839;
Dr. Pradeep Jain & Ors Vs. Union of India & Ors. reported in
B
(1984) 3 SCC 654; Rajesh Kumar Gupta & Ors. Vs. State of UP
& Ors. reported in (2005) 5 SCC 172; State of Orissa & Ors. Vs.
Sudhir Kumar Bishwal & Ors. reported in 1994 Supp (3) SCC 245
and Indra Sawhney & Ors. Vs. Union of India & Ors. reported in
1992 Supp (3) SCC 217, in support of their submissions that there
C cannot be 100% reservation for the local residents and such 100%
reservation for the local residents and / or reservations on the basis of
residence shall be hit by Article 16 (3) of the Constitution of India. On
the constitutional validity of the Notification making 100% reservation
for the local residents in exercise of powers under para 5 of the Fifth
Schedule of the Constitution of India, heavy reliance was placed on
D
recent Constitutional Bench decision of this Court in the case of
Chebrolu Leela Prasad Rao & Ors Vs. State of A.P. & Ors reported
in (2021) 11 SCC 401.
4.0. On the other hand, it was the case on behalf of the State as
well as successful candidates belonging to the Scheduled Districts that
E the Notification making 100% reservation for local residents of the
Scheduled Areas was / is absolutely within the scope, ambit and powers
of the Governor in exercise of para 5 of the Fifth Schedule to the
Constitution of India.
4.1. It was submitted that for the upliftment of local residents
F belonging to the Scheduled Areas / Districts such a reservation is
permissible. It was submitted that the object and purpose of declaring
Scheduled Districts / Areas under Fifth Schedule is to uplift and for the
betterment of local residents of the Scheduled Areas. It was also
contended on behalf of the State and successful candidates belonging to
G the Scheduled Areas/ Districts that special powers under the Fifth
Schedule are not subject to restriction under Article 16 of the Constitution
of India. Heavy reliance was placed on the non-obstante clause. It
was submitted that para 5(i) of the Fifth Schedule of the Constitution of
India begins with the words “notwithstanding contained anything in this
Constitution”. It was further submitted that even the Governor may by
H
SATYAJIT KUMAR & ORS. v. THE STATE OF JHARKHAND & 893
ORS. [M. R. SHAH, J.]
public notification direct that any particular Act of Parliament shall not A
apply to a Scheduled Area; powers conferred on the Governor with
respect to Scheduled Areas are special powers and therefore, such
powers are not subject to any of the restrictions contained in Article 16
and / or any other provisions of the Constitution of India.
5.0. By the impugned common judgment and order and following B
the decision of the Constitutional Bench of this Court in the case of
Chebrolu Leela Prasad Rao (supra), the High Court has declared
the aforesaid Notification and the aforesaid Advertisement unconstitutional
and / or ultra vires, to the extent making 100% reservation for the local
residents of the Scheduled Areas. By the impugned judgment and order,
the High Court has also held that the Notification and the Order are C
violative of Article 16(3) and 35(a) of the Constitution of India, as such
powers are vested only in the Parliament and not with the State
Legislature. By the impugned common judgment and order, the High
Court has also quashed para 5(iii) of the Advertisement No.21 of 2016
published on 28.12.2016 as modified by the advertisement dated 4.2.2017 D
to the extent it provided that as against the vacant posts of Trained
Graduate Teacher in the Scheduled Districts, only the local residents of
those Scheduled District can apply. In the result, the High Court has
quashed all the appointments of the Trained Graduate Teachers made
pursuant to the aforesaid advertisement, in the Scheduled Districts relating
to the local residents of those Districts only. That the High Court has E
further directed that all the 8423 posts of Trained Graduate Teacher in
the Government Secondary Schools in the Scheduled Districts of the
State of Jharkhand, be advertised afresh and fresh selection process be
undertaken in accordance with law. The High Court also further clarified
that all those candidates who were eligible to apply in response to the F
Advertisement No.21 of 2016, shall be entitled to apply in the fresh
selection process, irrespective of any barrier, if any, as to their age.
The High Court has also made it abundantly clear that by the ad-
interim order dated 18.09.2019, selection process was never stayed by
the Court in the Non-Scheduled Districts and there was no stay for G
appointments on any post in the Non-Scheduled Districts. According to
the High Court by impugned common judgment and order has allowed
all the writ petitions accordingly.
5.1. Feeling aggrieved and dissatisfied with the impugned common
judgment and order passed by the High Court of Jharkhand declaring H
894 SUPREME COURT REPORTS [2022] 12 S.C.R.
A Notification No. 5938 and Order No.5939 dated 14.07.2016 as
unconstitutional and ultra vires to Articles 14, 16(2), 16(3) and 35(a-i) of
the Constitution of India and consequently quashing para 5(iii) of the
Advertisement No. 21 of 2016 published on 28.12.2016 as modified by
the Advertisement dated 4.2.2017 to the extent of providing 100%
reservation for the local residents of the Thirteen Scheduled Districts
B
only, selected candidates belonging to the Scheduled Areas – local
residents of Scheduled Areas / Districts have preferred the present
Appeals.
6.0. Dr. Rajeev Dhavan, Shri Vikas Singh, Shri R. Venkataramani,
Ms. Vibha Datta Makhija, learned Senior Advocates have appeared on
C behalf of the successful candidates belonging to the Scheduled Areas.
We have heard Shri Kapil Sibal and Shri Sunil Kumar learned Senior
Advocates appearing on behalf of the State of Jharkhand. We have
heard Shri Ranjit Kumar and Shri Gopal Sankaranarayanan, learned
Senior Advocates appearing on behalf of the contesting respondents –
D original petitioners – candidates belonging to the Non-Scheduled Areas
/ Districts. We have also heard Shri Ajit Kumar Sinha, Shri Colin
Gonsalves and Shri Pallav Shishodia, learned Senior Advocates appearing
on behalf of the other respective parties/ interveners.
7.0. Shri R. Venkataramani, learned Senior Advocate appearing
E on behalf of some of the successful candidates belonging to the Scheduled
Districts / Areas has vehemently submitted that while passing the
impugned common judgment and order the High Court has not properly
appreciated and considered the object and purpose of declaration of the
Scheduled Areas in exercise of powers conferred under Fifth Schedule
and the object and purpose conferring special powers to the Governor
F under para 5 of the Fifth Schedule to the Constitution of India.
7.1. It is further submitted that the High Court has also not properly
appreciated and considered the reasons for which the Notification and
the order dated 14.07.2016 was issued by the Governor of State.
G 7.2. It is further submitted that the Notification and the order dated
14.07.2016 shows that the Scheduled Districts in the State of Jharkhand
are characterized by low human development indices, backwardness,
remoteness, poverty and they are on an average inferior to the social
indicators in the State due to uneven topography, lack of water resources,
loss in canopy average of forest and uncontrolled rapid industrialization.
H That due to the aforesaid grounds and the reasons, the Notification had
SATYAJIT KUMAR & ORS. v. THE STATE OF JHARKHAND & 895
ORS. [M. R. SHAH, J.]
to be issued by the Governor for protecting the interest of the residents A
of the Scheduled Districts.
7.3. Taking us to the Article 29, 38 and 46 of the Constitution of
India and reliance being placed on Article 244 of the Constitution of
India which deals with the administration of Scheduled Areas and Tribal
Areas to which Fifth Schedule of the Constitution applies, it is vehemently B
submitted that the said administration has to take special care of the
interests of minorities and the people belonging to the Scheduled Castes,
Scheduled Tribes and the weaker sections of the society, and to protect
them from social injustice and all forms of exploitation. It is submitted
that therefore, Notification / order dated 14.07.2016 issued by the
Governor in exercise of powers conferred under para 5(i) of the Fifth C
Scheduled of the Constitution of India which was issued to protect the
interest of local residents of the Scheduled Areas and for their upliftment,
ought not to have been held to be ultra vires and / or unconstitutional by
the High Court. It is submitted that the impugned judgment and order
passed by the High Court has the effect of taking away special rights D
conferred on the Governor, conferred under para 5 of the of the Fifth
Schedule of the Constitution of India.
7.4. It is further submitted that Article 16(2) of the Constitution of
India prohibits discrimination on the grounds “only” of religion, race,
caste, sex, descent, place of birth, residence and these expressions are E
preceded by the word “only” and followed by the expression “or any of
them” which play a very important role. It is submitted by Shri R.
Venkataramani, learned Senior Advocate appearing on behalf of
petitioners that successful candidates belonged to the Scheduled Area,
though it was the contention on behalf of the original petitioners that
discrimination is prohibited on the ground mentioned in Article 16(2) and F
16(3) and if any protective action is required to be taken under Articles
29, 38 and 46 of the Constitution of India the same is taken on any or
more of those grounds, in combination with other factors and Article
16(2) of the Constitution of India shall not be attracted, even if it results
in some discrimination to the other set of citizens. G
7.5 Shri R. Venkataramani, learned Senior Advocate appearing
on behalf of petitioners has further submitted that Governor of the State
is fully competent under para 5(i) of the Fifth Schedule of the Constitution
of India to issue notification making reservation in favour of the residents
of the Scheduled Districts in order to secure justice, social, economic H
896 SUPREME COURT REPORTS [2022] 12 S.C.R.
A and political to the residents suffering variously in the backdrop of the
conditions mentioned in the Notification. It is urged that under Article
15(4) of the Constitution of India, the State is empowered to make special
provisions for the advancement of any socially and educationally
backward classes of citizens or for Scheduled Castes and Scheduled
B Tribes, as such there is no violation of Articles 14 & 16 of the Constitution
of India. It is further submitted by Shri R. Venkataramani, learned Senior
Advocate that the Scheduled Area cannot be equated with the non-
scheduled areas. It is submitted that taking into consideration various
factors, it was found necessary to protect the interests of the residents
of the Scheduled Districts.
C
7.6. It is submitted that it would be of immense benefit to the
school going children in the Scheduled Districts, if they are taught in
their own tribal language by the local teachers, rather than by outsiders,
who may not be well conversant with the local language. It is urged that
orders under challenge before the High Court as such did not suffer
D from any denial of equality of opportunity and / or discriminatory. Further
the order under challenge before the High Court only distributes equality
of opportunity in terms of felt needs of the Scheduled Areas of the State.
Hence, there can be no objection to reasonable provisions being made
as regards Scheduled Areas. It is submitted that the Constitution permits
E discrimination, albeit on reasonable grounds.
7.7. It is further submitted that the scope of Article 16(3) is confined
to inter State borders and that it has no application to areas within a
State. In this context, reliance is placed on the decision of this Court in
the case of AVS Narasimha Rao and Ors. Vs. The State of A.P.
F reported in (1970) 1 SCR 115.
7.8. It is submitted that the Governor has the power under para 1
of the Fifth Schedule to enact any measure in the interests of the
Scheduled Areas. No dichotomy between the powers under paras 1 and
2 of the Fifth Schedule can be suggested. That they are only different
G facets of the plenary powers of the Governor. It is submitted that the
powers conferred on the Governor under para 5(1) and (2) of the Fifth
Schedule are plenary and exclusive powers. It is submitted that therefore
the Governor can also stay the law made by the Parliament and hence
the said powers are not subject to restrictions under Article 16 of the
Constitution of India.
H
SATYAJIT KUMAR & ORS. v. THE STATE OF JHARKHAND & 897
ORS. [M. R. SHAH, J.]
Shri R. Venkataramani, learned Senior Advocate appearing on A
behalf of petitioners has further submitted that as such the decision of
this Court in the case of Chebrolu Leela Prasad Rao (supra) is not
applicable at all to the facts of the case on hand. That in the case of
Chebrolu Leela Prasad Rao (supra) there was 100% preference /
reservation in favour of only of Scheduled Tribes of the respective local
B
areas of Andhra Pradesh, where schools are located. It is submitted that
in the instant case there is no such reservation only in favour of the
Scheduled Tribes of the Scheduled Areas. He has pointed out the following
distinguishing features in support of his submissions that the decision of
this Court in the case of Chebrolu Leela Prasad Rao (supra) shall
not be made applicable to the present cases. C
I. All candidates whether in Scheduled or non-Scheduled
Areas can apply only in the District.
II. Only Class III and IV posts at the District Level included.
In the context of fitness of transfers of employees, generally
this Court has observed that Class III and Class IV posts D
stand on a separate footing.
III. All candidates within the districts, whether SC/ST/BC or
OBC, General can apply.
IV. The provisions were experimental i.e., to last only for 10 E
years. (legislative experiments in Socio-economic matters
will receive judicial deference.
7.9. Relying upon the decisions of this Court in the case of Ram
Kripal Bhagat Vs. State of Bihar reported in (1970) 3 SCR 233 and
in the case of Puranlal Lakhanpal Vs. President of India reported in F
AIR 1961 SC 1519, it is prayed that there is need for reconsideration
of the decision in the case of Chebrolu Leela Prasad Rao (supra).
7.10. It is further submitted that in the present case, the Notification
issued by the Governor, impugned before the High Court are not hit by
Articles 14 and 16 of the Constitution of India and as such do not fall
G
within the scope of the judgment of this Court in the case of Chebrolu
Leela Prasad Rao (supra). It is submitted that the notifications can be
traced both to Article 16(3) and the Fifth Schedule of the Constitution. It
is further submitted that under the Fifth Schedule the Governor is placed
at par with the parliament and the State legislature, and the power
exercisable thereunder is plenary legislative power, and not subordinate H
898 SUPREME COURT REPORTS [2022] 12 S.C.R.
A to any other legislative power. The power of the Governor not to apply a
parliamentary law to a Scheduled Area would place her/ him at par with
the power of the Parliament available under Article 16(3) of the
Constitution.
7.11. It is further submitted that that the Governor can do what
B the Parliament can do under Article 16(3) of the Constitution, and thus
enact in respect of requirement of residence, as a measure of taking
care of the interests of schools in scheduled areas. It is further submitted
that since Article 16(3) is an exception to Article 16(1) any reasonable
provision as regards residence requirement will be saved. It does not
matter that the law is made either by Parliament or the Governor. The
C power of the Governor not to apply a parliamentary law includes the
power to do what the parliament can otherwise do.
7.12. It is further submitted that it is open to treat the notifications
not as the amending instruments of the Rules made by the State of
Jharkhand under Article 309 relating to appointment of teaching staff. It
D is submitted that in the case of Chebrolu Leela Prasad Rao (supra)
answering question 2(b) raised therein it was opined that since Rules
made under Article 309 are not Parliamentary or State law they cannot
be amended under para 5 of the Fifth Schedule.
7.13. It is further submitted that Fifth Schedule is a Constitution
E within the constitution, (See Kesavananda Bharati Vs. State of Kerala
(1973) 4 SCC 225) which suggests that the paramount interest of the
scheduled areas and their development in ways that would suit the areas
(for instance lands, forests, mineral wealth, etc. and the need to ensure
against exploitation) will always inform the Governor in the exercise of
F powers under the Fifth Schedule.
7.14. It is further submitted that the rules relating to appointment
themselves provide that no candidate can apply to posts in more than
one district, and that the cadres are district level and not State level
cadres. The Notification only extends the same restriction of one district
G application to Scheduled Areas, keeping in view the interests of all
Scheduled Areas. There is no inter se discrimination amongst eligible
candidates residing within the Scheduled Areas. All principles of
reservation to other categories of candidates are also applicable.
7.15. It is submitted that this court has saved domicile as a
reasonable principle as regards access to education and public
H
SATYAJIT KUMAR & ORS. v. THE STATE OF JHARKHAND & 899
ORS. [M. R. SHAH, J.]
employment. The safeguards enacted in Article 371 D, for example, are A
one proximate illustration.
7.16. It is submitted that the impugned Notifications are not
discriminatory. They do not look only at the place of residence as the
factor, relevant for appointment to schools in Scheduled Areas. They
treat residence as one among other factors, namely the best way of B
promoting the interests of schools in Scheduled Areas as a prominent or
dominant aspect. In the balancing of the interests of schools in Scheduled
Areas and the right of all in all districts to be considered for appointment
as teachers, if the factor of residence within the scheduled district will
tip in favour of the schools’ interest, then the emphasis in Article 16(2)
on non-discrimination “‘only»’ on grounds of residence will yield to Article C
16(3).
7.17. It is submitted that Article 16(2) of the Constitution of India
prohibits discrimination on the grounds “only” of religion, race, caste,
sex, descent, place of birth, residence, and these expressions are preceded
by the word “only” and followed by the expression “or any of them’, D
which are significant. In the present case, the cumulative factors of low
human development indices, backwardness, remoteness, poverty,
inferiority in the social indicators in the State due to uneven topography,
lack of water resources, loss in canopy average of forest and uncontrolled
rapid industrialization have been taken into consideration. E
7.18. It is further submitted that the Governor of the State is fully
competent under paragraph 5(1) of Fifth Schedule of the Constitution of
India to issue the notification making reservation in favour of the residents
of the scheduled districts in order to secure justice- social, economic and
political, to the residents suffering variously in the backdrop of the
F
conditions mentioned in the notification.
7.19. In the alternative, it is prayed that even if the Notification /
Order impugned before the High Court are held to be unconstitutional
and / or ultra vires, in that case, as done by this Court in the case of
Chebrolu Leela Prasad Rao (supra) the appointments already made
G
in the Scheduled Areas be saved even by exercising power under Article
142 of the Constitution of India. It is submitted that in many cases those
candidates who have been appointed in the Scheduled Areas, were either
working in the non-Scheduled Areas or for getting appointment in the
Non-Scheduled Areas they had left their jobs as they were getting
appointment in their own Districts. It is submitted that equities are also H
900 SUPREME COURT REPORTS [2022] 12 S.C.R.
A in their favour. It is further submitted that even appointment of the
petitioners may not be disturbed when large number of posts are still
lying vacant in the State of Jharkhand and under the provision of Right
to Education Act, fundamental rights are available to the residents of the
area to have access to education and further it is duty cast upon the
State to provide education.
B
7.20. It is submitted that the High Court has erred in not protecting
the appointments already made by narrowly applying the decision in the
case of Chebrolu Leela Prasad Rao (supra). One of the factors for
protecting appointments made to public services in pursuance of open
competition and fair opportunity, even though falling foul of any other
C
legal factor, will be whether the appointments are vitiated by the
candidature’s fraud or benefit, and whether the appointees will lose on
various counts. It is a matter of record that a large number of appointees
have left their previous jobs. Even in the case of Chebrolu Leela Prasad
Rao (supra), persons appointed as recently as in 2020 have been
D protected. Reliance is also placed on the judgement in Dr. Jaishri
Laxmanrao Patil Vs. Chief Minister 2021 SCC Online SC 362 for
protection granted by Court to the appointments already made.
8.0. Dr. Rajeev Dhavan, learned Senior Advocate appearing on
behalf of some of the petitioners – candidates belonging to the Scheduled
E Districts / Areas has elaborately made submission on the use of the
word “only” under Article 15(1) and 16(2) of the Constitution of India.
8.1. It is submitted by Dr. Rajeev Dhavan, learned Senior
Advocate appearing for the some of the petitioners that use of the word
“only” in Article 15(1) and 16(2) of the Constitution of India would suggest
F that any of the prohibited classification “including caste” cannot be taken
as the basis of the classification unless there is some wider constitutional
or public purpose and the classification has a nexus to and subserves
that purpose. Reliance is placed on the decision of this Court in the case
of Kailash Chandra Sharma (supra) (para 14) on the prohibitions in
Article 16(2). That it is observed in the said decision that prohibitory
G
mandate under Article 16(2) is not attracted if the alleged discrimination
is on grounds not merely related to residence but the factum of residence
is only taken into account in addition to other relevant factors.
8.2. Reliance is also placed on the decision of this Court in the
case of P. Rajendran Vs. State of Madras reported in (1968) 2 SCR
H
SATYAJIT KUMAR & ORS. v. THE STATE OF JHARKHAND & 901
ORS. [M. R. SHAH, J.]
786. It is submitted that as held by this Court in the aforesaid decision if A
the reservation in question, had been based only on caste and had not
taken into account the social and educational backwardness of the caste
in question, it would be violative of Article 15(1) but it must not be
forgotten that a caste can also refer to a class of citizens and if the caste
as a whole is socially and educationally backward, reservation can be
B
made in favour of such a caste on the ground that such a caste is socially
and educationally backward class within the meaning of Article 15(4).
8.3. Dr. Rajeev Dhavan, learned Senior Advocate has also relied
upon the decisions of this Court in the case of N. Vasundhara Vs.
State of Mysore reported in (1971) 2 SCC 22 and in the case of
Jayshree Vs. State of Kerala reported in (1976) 3 SCC 730 in support C
of his submission that for upliftment of local residents belonging to the
Schedules Areas, the Governor can in exercise of powers conferred
under para 5 of the Fifth Schedule stay any of the Act made by the
Parliament and / or State and the same cannot be said to be affecting
rights of the individual under Articles 16(2) and 16(3) of the Constitution D
of India.
9.0. Shri Vikas Singh, learned Senior Advocate appearing on behalf
of some of the original petitioners has made further submission in support
of the prayer to mould the relief to protect the services of the already
appointed candidates as they participated in a fair process of selection in E
which no malpractice was involved. It is submitted that even today, there
are more than 4000 posts available in the Scheduled Districts which are
lying vacant. In support of his above prayer, it is urged that this Court, in
the case of Chebrolu Leela Prasad Rao (supra) had saved the
appointments already made. It is submitted that this was because at
least 50% of the seats had been reserved for Scheduled Tribes only F
which was struck down by this Court. It is submitted that applying the
said observations in the present case also this Court while exercising its
extraordinary powers conferred under Article 142 of the Constitution of
India may protect the appointments made in the State of Jharkhand as
about 50% appointments of total advertised vacancies have been made
G
till now. It is submitted that if the appointments already made are set
aside pursuant to the impugned common judgment and order passed by
the High Court, in that case, lakhs of children who go to the school
would be without teachers which would be contrary to the constitutional
mandate of Right to Education as provided under Article 21A of the
Constitution of India. H
902 SUPREME COURT REPORTS [2022] 12 S.C.R.
A 9.1. It is submitted that thousands of innocent petitioners / teachers
will be rendered unemployed as against 219 contesting respondents /
interveners. That the paramount public interest demands that the
appointments already made are not disturbed and the impugned judgment
is made to apply only prospectively.
B 9.2. It is submitted that as such the original petitioners took part in
the selection process, knowing fully well about the reservation made in
favour of the local residents of the Scheduled Districts and thereafter
having taken part in the selection process and having failed in getting
selected, they cannot now turn around and challenge the conditions laid
C down in the advertisement.
9.3. It is further submitted that it is not true that less meritorious
candidates were given appointment and the rights of meritorious
candidates has been hampered. That as a matter of fact, in all most
every subject most of the appellants herein were much more meritorious
D than that of last selected / non selected / less meritorious candidates of
Non-Scheduled Districts.
Making above submissions, it is prayed to mould the relief and to
direct to apply the impugned common judgment and order passed by the
High Court prospectively and / or at least to save appointments already
E made.
10.0. Similar prayer to mould the relief and save the appointments
already made and to direct to apply impugned judgment and order passed
by the High Court prospectively has been made by Shri P.S. Patwalia,
learned Senior Advocate appearing on behalf of some of the appellants/
F teachers already appointed.
In the alternative, it is prayed that only those writ petitioners i.e.,
about 219 candidates may be given opportunity to submit an option of
the Districts where they would like to be appointed, which would be
done with reference to their merit against the vacant posts and with
G respect to rest of the vacant posts, the State may issue a fresh
advertisement in accordance with law, with the age relaxation to the
candidate who had already participated in the 2016 selection. In support
of his above submission, reliance is placed on the decision of this Court
in the case of Hanuman Dutt Shukla Vs. State of Uttar Pradesh
reported in (2018) 16 SCC 447.
H
SATYAJIT KUMAR & ORS. v. THE STATE OF JHARKHAND & 903
ORS. [M. R. SHAH, J.]
10.1. Shri Patwalia, learned Senior Advocate has also reiterated A
what has been submitted on behalf of the other counsel on merits by
assailing the impugned common judgment and order passed by the High
Court and on the constitutional validity of the Notification / Orders issued
by the Governor / State Government providing reservation for candidates
belonging to the local residents of the Scheduled Areas/ Districts.
B
11.0. Ms. Vibha Datta Makhija, learned Senior Advocate appearing
on behalf of some of the appellants herein –candidates already appointed
has made following submissions in support of her prayer to mould the
relief in favour of already appointed candidates.
I. That the appointments were made before the decision of C
this Court in the case of Chebrolu Leela Prasad Rao
(supra). Thus, at the time of appointment of the petitioners
herein, law in the State of Jharkhand was not clear and
was in a state of flux;
II. Even this Court has vide final order in the case of Chebrolu D
Leela Prasad Rao (supra) has saved the appointments;
III. That all the appointed candidates- petitioners are appointed
by a fair process of selection and they are all meritorious
candidates;
IV. The Schools would be without teachers in case the E
petitioners are ousted from service. In SLP (C)No.12490
of 2020 about 1108 schools would be having no teachers
and therefore, it may affect the education of the pupils.
That the residents of the Scheduled Areas are also having
right to education which is a fundamental right as provided F
under the Constitution of India. Therefore, if the petitioners
and other already appointed teachers are removed, in that
case, the schools would be without teachers and therefore,
it may affect / hamper the education in the State of
Jharkhand.
G
11.1. Ms. Makhija, learned Senior Advocate has also relied upon
the decisions of this Court in the case of Chebrolu Leela Prasad Rao
(supra), Kailash Chand Sharma Vs. State of Rajasthan reported in
(2002) 6 SCC 562, K Madhav Reddy Vs. State of A.P reported in
(2014) 6 SCC 537, R.K. Sabharwal Vs. State of Punjab reported in
(1995) 2 SCC 745 and Baburam Vs. CC Jacob reported in (1999) 3 H
904 SUPREME COURT REPORTS [2022] 12 S.C.R.
A SCC 362, in support of her prayer to direct to apply the impugned
judgment and order passed by the High Court only prospectively.
12. While assailing the impugned judgment and order passed by
the High Court Shri Kapil Sibal, learned Senior Advocate and Shri Sunil
Kumar, learned Senior Advocate appearing on behalf of the State of
B Jharkhand have vehemently submitted that in the present case and in
the facts and circumstances of the case, High Court has committed a
grave error in declaring the Notification / Order issued by the Governor
/ State Government and the advertisement providing reservation for the
local residents of Scheduled Area / Districts as unconstitutional and ultra
vires Articles 14, 16 and 35 of the Constitution of India.
C
12.1. It is submitted on behalf of the State that there is a basic
fallacy in the contention of the original petitioners that the impugned
Notification makes the District as the basis of classification. It is submitted
that as such a classification is made by the Constitution itself and the
basis is “Scheduled Area” as contemplated under Article 244 r/w Fifth
D Schedule of the Constitution of India. That the Scheduled Areas are
such of those areas comprised of mostly tribal population within the
different States constituting the Union of India which the Constitution of
India treats as special in the matter of its governance. That the President
may, by an order declare any such area as Scheduled Area under para 6
E of Fifth Schedule of the Constitution of India. Under sub-para 2 of para
5 of Fifth Schedule, the President may direct that the whole or any
specified part of a Scheduled Area shall cease to be a Scheduled Area
or a part of such an area, or even increase the area of a Scheduled Area
in the State. Thus the President may declare an entire District as a
Scheduled Area or a part of the District as a Scheduled Area or even
F the combination of two Districts as a Scheduled Area. It is submitted
that in the instant case on a consideration of the demography of the
different Districts in the State of Jharkhand, the President of India formed
an opinion to declare the areas comprised in 13 Districts as a Scheduled
Area and made the Scheduled Areas (State of Jharkhand) Order, 2007.
G That as time passes the President may declare that a portion of any of
the 13 Districts may cease to be a Scheduled Area or even increase the
area of any of the declared Scheduled Areas by combining portions of
two Districts. Therefore the impugned Notification and order makes the
District as the basis of classification. It is submitted that as such there is
no challenge to the Scheduled Area (State of Jharkhand) Order, 2007 in
H these cases.
SATYAJIT KUMAR & ORS. v. THE STATE OF JHARKHAND & 905
ORS. [M. R. SHAH, J.]
12.2. So far as the contention on behalf of the original writ A
petitioners that impugned Notification and Order purport to modify Rules
framed under the proviso to Article 309 which are neither an Act of
Parliament nor an Act of State Legislature, it is submitted that as such
impugned Notification carves out an exception by stating “Notwithstanding
anything contained in these rules or any other Act, Order, Direction,
B
Rules or Law for the time being in force” and hence would include an
Act of Parliament like the “Right of Children to Free and Compulsory
Education Act, 2009” which was enacted pursuant to Article 21-A of
the Constitution of India and is applicable to Elementary Schools. It is
submitted that Section 23 of the said 2009 Act makes provision for
eligibility for appointment of teachers in Elementary Schools. Hence the C
impugned Notification would have to be read as carving out an exception
/ modification to an Act of the Parliament i.e., Section 23 of the said
2009 Act and same cannot be faulted with.
12.3. It is submitted that the impugned Notification and the Rules
appended thereto which are being excepted / modified, are both expressed D
to have been made by “The Order of the Governor” and authenticated
in the manner prescribed under Article 166(2) of the Constitution of
India. That the source of power to issue the impugned Notification can
be traced to para 5(1) of Schedule V as also proviso to Article 309 of the
Constitution of India. It is submitted that the omission to mention “read
with proviso to Article 309 of the Constitution” after ‘in exercise of E
powers conferred by the provision of sub-para (1) of para 5 of the Fifth
Schedule ...” in the impugned Notification shall not affect / invalidate
the amendment to the Rules framed under the proviso to Article 309 of
the Constitution of India. That in the case of Union of India and Anr.
Vs. Tulsiram Patel reported in (1985) 3 SCC 398 (para 126) it is F
observed that the source of power exists by reading together two
provisions, whether statutory or constitutional and the order refers to
only one of them but the validity of the order should be upheld by construing
it as an order passed under both the provisions.
12.4 Now so far as submission on behalf of the original writ G
petitioners whether the impugned Notification / Order are violative of
Article 16 of the Constitution of India is concerned, it is vehemently
submitted that the impugned Notification and Order are not “only” on
the ground of residence. It is submitted that social indicators in the
scheduled areas being lesser as compared to the other areas of the
H
906 SUPREME COURT REPORTS [2022] 12 S.C.R.
A State as also the other factors mentioned in the impugned Notification /
Order which indicate that those residing therein are not equally
circumstanced as those residing in the Non- Scheduled Areas, there is
no equality of opportunity. Hence, a duty is cast upon the State to minimize
the inequalities in income and endevour to eliminate inequalities in status,
facilities and opportunities, not only amongst individuals but also amongst
B
group of people residing in different areas or engaged in different
vocations. It is submitted that the Directive Principle of State policy
contained in Articles 38, 39, 39-A, 43 and 46 part IV of the Constitution
of India would apply in this case. It is submitted that the impugned order
No.5939 dated 14.07.2016 was issued after noticing the Report of Tribal
C Advisory Council and various factors of inequality between the Scheduled
Areas and Non-Scheduled Area, it is stated therein that, inter alia, that
additional opportunities of employment had to be provided to those residing
in Scheduled Areas. That in the case of Kailash Chand Sharma (supra)
(para 48) it is observed that “equalising unequals by taking note of their
handicaps and limitation is not impermissible under the Constitution
D
provided that it seeks to achieve the goals of promoting overall equality”.
It is urged that in the present case it was expected that overall equality
would be achieved by expression / modification of the Rules made by
impugned Notification and Order for a period of ten years. Therefore,
as such, the impugned Notification and order cannot be said to be violative
E Article 16 of the Constitution of India.
12.5. Now so far as submission on behalf of the original writ
petitioners that the impugned Notification is violative of Article 14 of the
Constitution of India is concerned, it is vehemently submitted by learned
Senior Advocate on behalf of the State that such argument based on
F infringement of Article 14 is fallacious. It is contended that while Article
14 guarantees that the State shall not deny to any person equality before
law or the equal protection of laws, para 5(1) of Fifth Schedule starts
with a non obstante clause which empowers the Governor to direct
that any Central Law or State Law shall not apply to a Scheduled Area
or part thereof or may apply with such exceptions or modifications as he
G may direct. It is submitted that if the submission on behalf of the original
petitioners that the impugned notification / order is in violation of Article
14 is accepted, in that case, it would lead to an apparent conflict between
two constitutional provisions, viz. Article 14 and para 5(1) of Fifth
Schedule. It is submitted that this conflict can only be resolved by following
H the well settled principle of harmonious construction that the special law
SATYAJIT KUMAR & ORS. v. THE STATE OF JHARKHAND & 907
ORS. [M. R. SHAH, J.]
shall prevail over the general. Reliance is placed on the decision of this A
Court in the case of J K Spinning and Weaving Mills Co. Ltd Vs.
State of UP reported in AIR 1961 SC 1170 (para 9). It is submitted
that said provision for the Governance and development of the Scheduled
Areas and the Tribals residing therein would never be subject to the
general provisions of the fundamental rights guaranteed under Article
B
16.
12.6. In the alternative, it is prayed by the learned Senior Advocate
appearing on behalf of the State not to disturb the appointments already
made earlier and to apply the impugned common judgment and order
passed by the High Court prospectively so that it may not affect the
education of the local residents of the Scheduled Areas. It is submitted C
that if the impugned judgment and order passed by the High Court is
implemented and the appointments already made are also set aside as
observed and held by the High Court, in that case, the teachers will have
to be relieved and many schools in the Scheduled Areas would be without
teachers and it may ultimately hamper education in the State and which D
may violate the fundamental rights which would be available to the local
residents of the Scheduled Area guaranteed under Article 21 A of the
Constitution of India.
13. Present Appeals are vehemently opposed by Shri Ranjit Kumar
and Shri Gopal Sankaranarayanan, learned Senior Advocates appearing E
on behalf of the contesting respondents – original petitioners – candidates
belonging to the Non-Scheduled Areas / Districts.
13.1. Shri Ranjit Kumar, learned Senior Advocate appearing on
behalf of the original writ petitioners appearing in Civil Appeal No.4044
of 2022 on behalf of Soni Kumari has submitted that the original writ F
petitioners (W.P No.1387 of 2017 before the High Court) approached
the High Court challenging the State Government Notification No.5938
and Order No.5939 dated 14.07.2016 whereby in Thirteen Scheduled
Districts in Jharkhand (out of total 24 Districts) only local residents of
Thirteen Scheduled Districts were made eligible for appointment to Class
III and IV posts for a period of 10 years as well as advertisement dated G
28.12.2016 as modified on 4.12.2017 and clause V (iii) which restricted
only local residents / domicile of notified / Scheduled Districts alone
being entitled to submit application against vacancies earmarked for the
said Districts. It is submitted that due to the impugned Notification /
order and the advertisement she was constrained to submit the application H
908 SUPREME COURT REPORTS [2022] 12 S.C.R.
A Form for District Palamu – a Non-Scheduled District, though after her
marriage she is residing at Ranchi, a Scheduled District. It is submitted
that she had secured more marks than the cut off marks obtained by the
last selected candidate in her category and subject in the Scheduled
Districts and yet she was not selected. It is submitted that in this factual
background the challenge to the impugned notification / order and the
B
advancement are required to be appreciated.
13.2. It is submitted by Shri Ranjit Kumar, learned Senior Advocate
that the issues which arises for consideration in the instant case are:
I. Whether the exercise of Governor’s power under Paragraph
C 5 of the Fifth Schedule is a “plenary power” or an “enabling
power” which must meet the test of basic feature/
foundational principles and fundamental rights guaranteed
under Part III of the Constitution?
II. Whether the Governor is vested with the power to determine
D eligibility based on residence (specifying 100% reservation
for domiciles in Schedule Districts) under Paragraph 5(1)
of the Fifth Schedule?
III. Whether GOs No. 5938 & 5939 dated 14.07.2016 whereby
in the 13 Scheduled Districts in Jharkhand, Only local
E residents of the said districts were declared eligible for
appointment to Class Ill and IV posts for a period of 10
years are ultra vires Articles 14, 16(2)&(3) and 35 (a-i) of
the Constitution?
13.3. In support of the submissions on behalf of the original
F petitioners – candidates belonging to the Non-Scheduled Areas that the
impugned Notification / Order and the advertisement restricting the local
residents of the Scheduled Area only to apply for the post in the Scheduled
Area are ultra vires to Articles 14 & 16 of the Constitution of India and
it affects candidates belonging to the non-Scheduled Area guaranteed
under Part III of the Constitution of India, following submissions are
G made:
I. The power vested with the Governor under Article 244(1)
read with the Fifth Schedule of the Constitution is not a
plenary power but is an enabling power to meet the object
specified therein i.e., “Administration of the Scheduled
H Areas”. Paragraph 5(1) of the Fifth Schedule is one facet
SATYAJIT KUMAR & ORS. v. THE STATE OF JHARKHAND & 909
ORS. [M. R. SHAH, J.]
of this enabling power vested with the Governor. In terms A
of this paragraph, he may determine which Parliament or
State legislation shall apply to the Scheduled Area, specify
the exceptions/modifications to the legislations so specified
and also determine retrospective applicability of such
legislation;
B
II. The power of the Governor under Para 5(1) of Fifth
Schedule 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 only be
dealt with;
C
III. The Non obstante clause in Paragraph 5 of Fifth Schedule
cannot be construed as taking away the provision outside
the limitations on the amending power and has to be
harmoniously construed consistent with the foundational
principles and the basic features of the Constitution;
D
IV. 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 State while making law and shall not affect fundamental
rights guaranteed under Part III of the Constitution;
E
In support of above submissions, heavy reliance is placed
on the decision of this Court in the case of Chebrolu Leela
Prasad Rao (supra) (Paras 102-104, 154(1)(c)).
13.4. It is further submitted by Shri Ranjit Kumar, learned Senior
Advocate that residence local by itself cannot be a ground to accord any F
preferential treatment for reservation in public employment by the State
Government since the same stands specifically barred by Article 16(1)
and (2) of the Constitution. Reliance is placed on the decision of this
Court in the case of State of Orissa & Ors Vs. Sudhir Kumar Bishwal
& Ors reported in 1994 Supp (3) SCC 245 para 6 and 8.
G
13.5. It is further submitted that the Governor lacks subject matter
jurisdiction to prescribe any requirement as to residence within the State
in light of Article 16(3) r/w Article 35 (a-i) of the Constitution which
mandate that power to create residential qualification for employment is
exclusively conferred on Parliament and not the State Legislature which,
by necessary corollary, shall exclude the State Executive (Governor) H
910 SUPREME COURT REPORTS [2022] 12 S.C.R.
A whose power is co-terminus with the State Legislature. It is submitted
that the Parliament alone is empowered to make the law prescribing
residential requirement within a State or Union Territory, as the case
may be, in relation to a class or classes of employment. It is submitted
that therefore, in the absence of parliamentary law, even the prescription
of requirement as to residence within the State is impossible. In support
B
of above submission, reliance is placed on the decision of this Court in
the case of AVS Narasimha Rao & Ors. Vs. State of Andhra Pradesh
& Anr. reported in (1969) 1 SCC 839, Kailash Chand Sharma Vs.
State of Rajasthan & Ors. reported in (2002) 6 SCC 562 (para 13-
14) and Rajesh Kumar Gupta & Ors. Vs. State of UP & Ors. reported
C in (2005) 5 SCC 172 (para 16 &b 17).
13.6. It is further submitted that even otherwise impugned orders
/ notification as sought to introduce 100% reservation in the Thirteen
Scheduled District in the State of Jharkhand whereby only local residents
of said Districts were declared eligible for appointment to Class III and
D IV posts for the period of 10 years, are contrary to the law laid down by
this Court in the case of Indra Sawhney (supra) (para 788) as well as
recent decision of the Constitutional Bench of this Court in the case of
Chebrolu Leela Prasad Rao (supra) (para 104) wherein it has been
held that the outer limit of the reservations contemplated in Clause (4) of
Article 16 of the Constitution of India should not normally exceed the
E limit of 50%.
13.7. Now so far as justification by the State in invoking “sons of
the soil” policy prescribing reservation or preference based on domicile
or residence as already been decried by this Court in the case of Dr.
Pradeep Jain Vs. UOI reported in (1984) 3 SCC 654 (para 5), it is
F submitted that in the said decision it is observed and held that the
Parliament alone has been given the right to enact an exception to the
ban on discrimination based on residence. The impugned Government
Notifications No. 5938 & 5939 dated 14.07.2016 are ex facie violative
of Article 14 of the Constitution in as much as the same is not based on
any intelligible differentia and does not have any rational nexus with the
G
object and purpose it has set out to achieve i.e., selection of the most
competent teachers to impart quality education in secondary and high
schools run by State Government and improvement of educational
standard of the residents within the State. It is submitted that many
districts notified as Scheduled Districts like East Singhbhum
H (Jamshedpur) and Ranchi are at the top half of the Human Development
SATYAJIT KUMAR & ORS. v. THE STATE OF JHARKHAND & 911
ORS. [M. R. SHAH, J.]
Index (HDI) in Jharkhand whereas the Petitioner’s District Palamau A
has the lowest HDI in the State, yet has been classified as a Non-
Scheduled District which smacks of arbitrariness adopted by the State
in determination of Schedule and Non- Scheduled Districts.
13.8. It is further submitted that even the contention raised by the
State Government and some of the learned counsel appearing on behalf B
of the candidates belonging to the Scheduled Areas that the impugned
Notification / Order were premised on the basis that candidates who
knew the local tribal language spoken in the concerned district would be
in a better position to teach the students, is absolutely fallacious. It is
submitted that as such said contention has not been approved and / or
accepted by this Court in the case of Chebrolu Leela Prasad Rao C
(supra). That even otherwise TGT Recruitment Process is conducted
for selection of Trained Graduate Teachers to teach various subjects in
Secondary Schools. It is submitted that thus excepting for the local tribal
language subject, all other subjects (viz. English, Hindi, Mathematics,
Science, Social Studies) which are general in nature must be taught by D
the most meritorious teachers so as to bring about an all-round development
of the students as opposed to a substandard teacher whose contribution
is negligible in academics.
It is submitted that Hindi is the official language in Jharkhand and
is also the common medium of interaction among the various regions in E
the State since over 21 languages are spoken in the State. That therefore,
it stands to no reason that persons who do not know all 21 regional
languages spoken in the State would be unable to impart education to
the students in those regions. It is submitted that any person who is well
versed in Hindi (Devnagari script) is more than competent to effectively
impart education to the students in all districts in the State without any F
hindrance.
13.9. It is further submitted by Shri Ranjit Kumar, learned Senior
Advocate that once impugned Notification / Order are held to be
unconstitutional and ultra vires to Articles 14, 16 and 35 of the Constitution
of India, in that case, any appointment made violating the fundamental G
rights of the original writ petitioners and appointment made pursuant to
such unconstitutional provisions, the same have to be set aside. It is
submitted that therefore, the High Court has not committed any error in
quashing the appointment of the original writ petitioner. In support of his
above submission, following recent decisions are relied upon: H
912 SUPREME COURT REPORTS [2022] 12 S.C.R.
A I. Anupal Singh Vs. State of UP reported in (2020) 2 SCC
173.
II. State of UP and Ors. Vs. Anand Kumar Yadav and Ors.
reported in (2018) 13 SCC 560.
III. Renu Vs. District & Sessions Judge reported in (2014)
B 15 SCC 731.
IV. State of MP Vs. Dharam Bir reported in (1998) 6 SCC
165.
V. Syed Khalid Rizvi and Ors. Vs. Union of India and
C Ors. reported in 1993 Supp. (3) SCC 575.
VI. Surajprakash Gupta and Ors. Vs. State of J & K and
Ors. reported in (2000) 7 SCC 561.
VII. R.S. Garg Vs. State of UP and Ors. reported in (2006) 6
SCC 430.
D
VIII. Secretary, State of Karnataka and Ors. Vs. Umadevi
(3) and Ors. reported in (2006) 4 SCC 1.
13.10 It is further submitted by Shri Ranjit Kumar, learned Senior
Advocate appearing on behalf of the respective original writ petitioners
– candidates belonging to the Non-Scheduled Districts has also requested
E to mould the relief under Article 142 of the Constitution of India by
directing to prepare a revised merit list based on the already published
cut off obtained by the last selected candidate in each TGT subject
against respective categories. It is submitted that this would entail that
no fresh or de novo recruitment process is initiated qua the advertised
F posts on the one hand, while on the other hand candidates from the
present pool itself including the original writ petition – Soni Kumar and
218 similarly situated candidates as well as even the present selected
candidates will get an opportunity to be considered for appointment as
TGT teachers. Reliance is placed on the decision of this Court in the
case of Rajesh Kumar Vs. State of Bihar reported in (2013) 4 SCC
G 690 and Ran Vijay Singh Vs. State of UP reported in (2018) 2 SCC
357, in support of his request and prayer to mould the relief as prayed
for.
14. Shri Gopal Sankaranarayanan, the learned Senior Advocate
has also made elaborate submissions in support of the impugned common
H judgment and order.
SATYAJIT KUMAR & ORS. v. THE STATE OF JHARKHAND & 913
ORS. [M. R. SHAH, J.]
15. In the State of Jharkhand 13 Districts were declared as A
Scheduled Districts / Areas in exercise of powers conferred by sub-
paragraph (2) of Paragraph 6 of the Fifth Schedule to the Constitution of
India. That the State Government has framed the Recruitment Rules,
2015 prescribing conditions / qualifications for appointment of teachers.
The said Rules are in exercise of powers under Article 309 of the
B
Constitution of India. That vide Circular dated 18.04.2016 and pursuant
to the order passed by the High Court, the State Government has
prescribed definition of “Local Resident of Jharkhand”. As per the said
circular, Local Resident of Jharkhand would be deemed to be Indian
Citizens who are fulfilling any one condition out of the following criteria:-
“(i).he would have been residing within the geographical C
limits of the State of Jharkhand and either his own name or
name of his forefather would have been lying recorded in
Survey Khata. In the cases of landless, he would be identified
by the concerning Gram Sabha which would be based on
language, culture & traditions prevailing in the State of D
Jharkhand.
(ii)would have been residing within the geographical limits
of the State of Jharkhand for the past 30 years or more due
to any trade, employment and other reasons and would have
earned immovable property or such person has wife/husband E
/child and affirm commitment to stay in Jharkhand State.
(iii) would have been appointed & working officer/employee
under the Government of State of Jharkhand / institutions
being run/recognized by the State Government, Corporation
etc. Or has wife/husband /child and affirm commitment to stay F
in Jharkhand state.
(iv)Officer/employee of the Government of India, working in
the State of Jharkhand or have 188 wife/husband /child and
affirm commitment to stay in Jharkhand state.
(v)Person appointed at any constitutional or statutory posts G
in the State of Jharkhand or have wife/husband /child and
affirm commitment to stay in Jharkhand state.
(vi) Such person who would have born in the State of
Jharkhand and completed his whole education upto
Matriculation or its equivalent level from the recognized H
914 SUPREME COURT REPORTS [2022] 12 S.C.R.
A institutions established in the state of Jharkhand & affirm
commitment to stay in Jharkhand state.”
16. That thereafter, Governor of Jharkhand / State Government
in exercise of powers under Paragraph 2(1) of the Fifth Schedule to the
Constitution of India has issued the order / Notification dated 14.07.2016,
B inter alia, providing that notwithstanding anything contained in any
Appointment / Recruitment Rules or any other Act, Order, Direction,
Rules or Law for the time being in force only local residents of the
Scheduled Areas / Districts in the State shall be eligible for recruitment
to the vacancy arising in Class III and IV posts of the District Cadre in
various departments of the concerned Districts, for a period of 10 years
C from the date of issue of the said Notification. The Order and Notification,
validity of which have been questioned, are extracted hereinunder:
“Government of Jharkhand
Deptt. of Personnel, Administrative Reforms & Rajbhasha
D Order
Ranchi, Dated 14.07.2016
No. 5939 / Whereas, under sub-paragraph (1) of paragraph
5 of the Fifth Schedule to the Constitution of India, the
Governor may, by public notification direct that any particular
E
Act of Parliament or of the Legislature of the State shall not
apply to a Schedule Area or any part thereof in the State
subject to such exceptions and modifications as specified in
the notification.
And whereas, the Scheduled Area in the State are characterized
F
by low Human Development Indices, backwardness, W.P.(C)
No. 1387 of 2017 and analogous matters remoteness poverty
and whereas the social indicators of the Scheduled Areas are
on an average, inferior to the average of social indicators in
the State due to uneven topography, lack of water resources,
G loss in canopy coverage of forest and uncontrolled rapid
industrialization;
And whereas, recognizing the factors identified above, the
Tribal Advisory Council of Jharkhand has recommended
issuing of a notification by the Governor for suspension of
H eligibility conditions as enshrined in various appointment rules
SATYAJIT KUMAR & ORS. v. THE STATE OF JHARKHAND & 915
ORS. [M. R. SHAH, J.]
for the appointment of class 3 and class 4 posts at district A
level for a period of 10 years in the 13 districts namely-
Sahebganj, Pakur, Dumka, Jamtara, Latehar, Ranchi, Khunti,
Gumla, Lohardagga, Simdega, East Singhbhum, West
Singhbhum and Sraikela-Kharsawan for appointment of cent-
percent District level class-3 and class-4 posts by the local
B
residents of the district concerned;
And whereas, the Governor of Jharkhand in order to improve
the quality of people in the Scheduled Areas, by providing
additional opportunities of employment, in favour of the local
residents of Scheduled Areas;
C
The following notification shall come into effect from the date
of its publications in the official Gazette.”
“Government of Jharkhand
Deptt. of Personnel, Administrative Reforms & Rajbhasha
D
Notification
Ranchi, Dated 14.07.2016
No.14 / Sthaneeyata Neeti-14-01/2015/5938 In exercise of
powers conferred by the provisions by sub-paragraph (1) of
paragraph 5 of the Fifth Schedule to the Constitution of India, E
the Governor of Jharkhand, hereby, directs that the provisions
regarding “eligibility of the appointment” mentioned in the
various appointment rules as per list enclosed, Government
may amend from time to time, framed by the State Government
under article 309 of the Constitution for the appointment to
F
the district cadre posts, shall be deemed to the modified and
enforced up to the extent as specified, hereinafter, namely:-
“Notwithstanding anything contained in these rules or any
other Act, Order, Direction, Rules or Law for the time being
in force, only local residents of the districts namely -
Sahebganj, Pakur, Dumka, Jamtara, Latehar, Ranchi, G
Khunti, Gumla, Lohardagga, Simdega, East Singhbhum,
West Singhbhum and W.P.(C) No. 1387 of 2017 and
analogous matters Sraikela-Kharsawan, shall be eligible
for recruitment to the vacancies arising in class-3 and class-
4 posts of the district cadre in various department of the H
916 SUPREME COURT REPORTS [2022] 12 S.C.R.
A concerned districts, for a period of 10 years from the date
of issue of this notification.”
By order in the name of the
Governor of Jharkhand
Sd/- Nidhi Khare
B
Principal Secretary to the
Government
16.1. Thus, by the aforesaid impugned Order / Notification the
Governor of Jharkhand has directed that the provisions regarding
“eligibility of the appointment” mentioned in the various Appointment
C
Rules, and as framed by the State Government under Article 309 of the
Constitution of India for the appointment to the District Cadre posts,
shall be deemed to the modified and enforced up to the extent that cent-
percent Class-III and Class-IV posts in various department in the 13
Scheduled districts shall be reserved for the local residents of the
D concerned districts only. At this stage, it is required to be noted that by
the said Notification only the service Rules framed under Article 309 of
the Constitution of India came to be modified and even the list attached
to the notification does not contain any Act of the Parliament or of the
State Legislature. By the impugned judgment and order, the High Court,
following and relying upon the decision of the Constitutional Bench of
E this Court in the case of Chebrolu Leela Prasad Rao (supra) has
declared the aforesaid Order / Notification dated 14.07.2016 as
unconstitutional and consequently has quashed appointments of the trained
graduate teachers made pursuant to the Advertisement No. 21/2016
published on 28th December, 2016 as modified by Advertisement dated
F 4.2.2017, in the Scheduled Districts relating to the local resident of those
Districts only. That thereafter, the High Court has directed that all the
8423 posts of Trained Graduate Teacher in the Government Secondary
Schools in the scheduled districts of the State of Jharkhand shall be
advertised afresh and a fresh selection process be undertaken in
accordance with law. The impugned judgment and order passed by the
G High Court and the aforesaid directions is the subject matter of the present
appeals.
17. Having heard the learned counsel for the respective parties
and considering the impugned common judgment and order passed by
the High Court, the questions which are posed for consideration of this
H Court are as under:
SATYAJIT KUMAR & ORS. v. THE STATE OF JHARKHAND & 917
ORS. [M. R. SHAH, J.]
I. Whether in exercise of powers conferred under paragraph A
5(1) of the Fifth Schedule to the Constitution of India,
whether, the Governor can provide for 100% reservation
contrary to Part III of the Constitution of India, more
particularly, guaranteed under Article 16(1) and (2) ?
II. Whether in exercise of powers under paragraph 5(1) of B
the Fifth Schedule to the Constitution of India the Governor
has the power to modify the relevant Recruitment Rules
framed under Article 309 of the Constitution of India ?
III. What order ?
17.1. While considering the aforesaid questions / issues the relevant C
Constitutional provisions which would have a direct bearing are required
to be referred to, which are as under: -
“Article 13. Laws inconsistent with or in derogation of the
fundamental rights- (1) All laws in force in the territory of
India immediately before the commencement of this D
Constitution, in so far as they are inconsistent with the
provisions of this Part, shall, to the extent of such inconsistency,
be void.
(2) The State shall not make any law which takes away or
abridges the rights conferred by this Part and any law made E
in contravention of this clause shall, to the extent of the
contravention, be void.
(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 F
territory of India the force of law;
(b) “laws in force” includes laws passed or made by a
Legislature or other competent authority in the territory of
India before the commencement of this Constitution and not
previously repealed, notwithstanding that any such law or G
any part thereof may not be then in operation either at all or
in particular areas.
(4) Nothing in this article shall apply to any amendment of
this Constitution made under article 368.
xxx xxx xxx H
918 SUPREME COURT REPORTS [2022] 12 S.C.R.
A Article 16. Equality of opportunity in matters of public
employment - (1) There shall be equality of opportunity for
all citizens in matters relating to employment or appointment
to any office under the State.
(2) No citizen shall, on grounds only of religion, race, caste,
B sex, descent, place of birth, residence or any of them, be
ineligible for, or discriminated against in respect of, any
employment or office under the State.
(3) Nothing in this article shall prevent Parliament from
making any law prescribing, in regard to a class or classes of
C employment or appointment to an office 1[under the
Government of, or any local or other authority within, a State
or Union territory, any requirement as to residence within
that State or Union territory] prior to such employment or
appointment.
D (4) Nothing in this article shall prevent the State from making
any provision for the reservation of appointments or posts in
favour of any backward class of citizens which, in the opinion
of the State, is not adequately represented in the services under
the State.
E (4A) Nothing in this article shall prevent the State from making
any provision for reservation 3[in matters of promotion, with
consequential seniority, to any class] or classes of posts in
the services under the State in favour of the Scheduled Castes
and the Scheduled Tribes which, in the opinion of the State,
F are not adequately represented in the services under the State.
(4B) Nothing in this article shall prevent the State from
considering any unfilled vacancies of a year which are
reserved for being filled up in that year in accordance with
any provision for reservation made under clause (4) or clause
G (4A) as a separate class of vacancies to be filled up in any
succeeding year or years and such class of vacancies shall
not be considered together with the vacancies of the year in
which they are being filled up for determining the ceiling of
fifty per cent. reservation on total number of vacancies of
that year.
H
SATYAJIT KUMAR & ORS. v. THE STATE OF JHARKHAND & 919
ORS. [M. R. SHAH, J.]
(5) Nothing in this article shall affect the operation of any A
law which provides that the incumbent of an office in
connection with the affairs of any religious or denominational
institution or any member of the governing body thereof shall
be a person professing a particular religion or belonging to
a particular denomination.
B
xxx xxx xxx
Article 46. Promotion of educational and economic interests
of Scheduled Castes, Scheduled Tribes and other weaker
sections - The State shall promote with special care the
educational and economic interests of the weaker sections of C
the people, and, in particular, of the Scheduled Castes and
the Scheduled Tribes, and shall protect them from social
injustice and all forms of exploitation.
xxx xxx xxx
D
Article 244. Administration of Scheduled Areas and Tribal
Areas - (1) The provisions of the Fifth Schedule shall apply
to the administration and control of the Scheduled Areas and
Scheduled Tribes in any State 1*** other than 2[the States of
Assam3[,4[Meghalaya, Tripura and Mizoram].
E
(2) The provisions of the Sixth Schedule shall apply to the
administration of the tribal areas in 2[the States of Assam
3[,5[Meghalaya, Tripura and Mizoram]
xxx xxx xxx
Article 246. Subject-matter of laws made by Parliament and F
by the Legislatures of States - (1) Notwithstanding anything
in clauses (2) and (3), Parliament has exclusive power to make
laws with respect to any of the matters enumerated in List I in
the Seventh Schedule (in this Constitution referred to as the
“Union List”). G
(2) Notwithstanding anything in clause (3), Parliament, and,
subject to clause (1), the Legislature of any State 1*** also,
have power to make laws with respect to any of the matters
enumerated in List III in the Seventh Schedule (in this
Constitution referred to as the “Concurrent List”). H
920 SUPREME COURT REPORTS [2022] 12 S.C.R.
A (3) Subject to clauses (1) and (2), the Legislature of any State
1*** has exclusive power to make laws for such State or any
part thereof with respect to any of the matters enumerated in
List II in the Seventh Schedule (in this Constitution referred
to as the “State List”).
B (4) Parliament has power to make laws with respect to any
matter for any part of the territory of India not included 2[in
a State] notwithstanding that such matter is a matter
enumerated in the State List.
xxx xxx xxx
C
Article 254. Inconsistency between laws made by Parliament
and laws made by the Legislatures of States - (1) If any
provision of a law made by the Legislature of a State is
repugnant to any provision of a law made by Parliament which
Parliament is competent to enact, or to any provision of an
D existing law with respect to one of the matters enumerated in
the Concurrent List, then, subject to the provisions of clause
(2), the law made by Parliament, whether passed before or
after the law made by the Legislature of such State, or, as the
case may be, the existing law, shall prevail and the law made
by the Legislature of the State shall, to the extent of the
E
repugnancy, be void.
(2) Where a law made by the Legislature of a State 1*** with
respect to one of the matters enumerated in the Concurrent
List contains any provision repugnant to the provisions of an
F earlier law made by Parliament or an existing law with respect
to that matter, then, the law so made by the Legislature of
such State shall, if it has been reserved for the consideration
of the President and has received his assent, prevail in that
State:
G Provided that nothing in this clause shall prevent Parliament
from enacting at any time any law with respect to the same
matter including a law adding to, amending, varying or
repealing the law so made by the Legislature of the State.
xxx xxx xxx
H
SATYAJIT KUMAR & ORS. v. THE STATE OF JHARKHAND & 921
ORS. [M. R. SHAH, J.]
309. Recruitment and conditions of service of persons serving A
the Union or a State - Subject to the provisions of this
Constitution, Acts of the appropriate Legislature may regulate
the recruitment, and conditions of service of persons
appointed, to public services and posts in connection with
the affairs of the Union or of any State:
B
Provided that it shall be competent for the President or
such person as he may direct in the case of services and posts
in connection with the affairs of the Union, and for the
Governor of a State or such person as he may direct in the
case of services and posts in connection with the affairs of
the State, to make rules regulating the recruitment, and the C
conditions of service of persons appointed, to such services
and posts until provision in that behalf is made by or under
an Act of the appropriate Legislature under this article, and
any rules so made shall have effect subject to the provisions
of any such Act D
Para 5 of the Fifth Schedule of the Constitution
5. Law applicable to Scheduled Areas.—(1) Notwithstanding
anything in this Constitution, the Governor may by public
notification direct that any particular Act of Parliament or of
the Legislature of the State shall not apply to a Scheduled E
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. F
(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— G
(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;
H
922 SUPREME COURT REPORTS [2022] 12 S.C.R.
A (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 Governor1*** may
B repeal or amend 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
C him, shall have no effect.
(5) No regulation shall be made under this paragraph unless
the Governor making the regulation has, in the case where
there is a Tribes Advisory Council for the State, consulted
such Council.
D 17.2. As per Article 246(1), notwithstanding anything contained in
clauses (2) and (3), Parliament shall have exclusive power to make laws
with respect to any of the matters enumerated in List I in the Seventh
Schedule (Union List). As per Article 246(2), notwithstanding anything
in clause (3), Parliament, and, subject to clause (1), the Legislature of
any State also shall have power to make laws with respect to any of the
E
matters enumerated in List III in the Seventh Schedule (Concurrent
List). As per Article 254 of the Constitution of India, if any provision of
law made by the Legislature of a State is repugnant to any provision of
a law made by Parliament which Parliament is competent to enact, or to
any provision of an existing law with respect to one of the matters
F enumerated in the Concurrent List, then, subject to the provisions of
clause (2), the law made by Parliament, whether passed before or after
the law made by the Legislature of such State, or, as the case may be,
the existing law, shall prevail and the law made by the Legislature of the
State shall, to the extent of the repugnancy, be void. Thus, as per the
aforesaid Constitutional provisions, law made by the Parliament is supreme
G and shall prevail and every State/State Legislature is bound by the law
made by the Parliament. However, paragraph 5 of the Fifth Schedule to
the Constitution of India is an exception. Notwithstanding the aforesaid
provisions, giving supremacy to the law made by the Parliament, the
Governor may direct that any particular Act of Parliament or of the
H Legislature of the State shall not apply to a Scheduled Area or any part
SATYAJIT KUMAR & ORS. v. THE STATE OF JHARKHAND & 923
ORS. [M. R. SHAH, J.]
thereof in the State or shall apply to a Scheduled Area or any part thereof A
in the State subject to such exceptions and modifications as he may
specify in the notification. Thus, the expression “notwithstanding anything
in this Constitution” is related to the Constitutional provisions regarding
the supremacy of the law made by the Parliament or State Legislature.
This aspect shall be discussed herein below while considering the
submissions made on behalf of the appellants herein regarding paragraph B
5(1) of the Fifth Schedule to the Constitution of India.
17.3. Therefore, the short question which is posed for the
consideration of this Court is, whether, in exercise of powers conferred
under paragraph 5(1) of the Fifth Schedule to the Constitution, the
Governor can make provisions for 100% reservation in the scheduled C
Areas / Districts which may affect the rights of the citizens guaranteed
under Part III, more particularly, under Article 16 (2) of the Constitution
of India? Whether such reservation would not be hit by Article 13 of the
Constitution of India?
18. Identical question came to be considered by the Constitutional D
Bench of this Court in the case of Chebrolu Leela Prasad Rao (supra).
Before this Court the Governor of State of Andhra Pradesh issued GO
in exercise of powers under paragraph 5(1) of the Schedule 5 of the
Constitution of India, directing the posts of teachers in educational
institutions in the scheduled tribe areas shall be reserved for Scheduled
E
Tribes only notwithstanding anything contained in any other order or rule
or law in force. Several questions were referred to the Constitution Bench.
The following questions were ultimately framed for consideration by the
Constitutional Bench:
(1) What is the scope of paragraph 5(1), Schedule V to the
Constitution of India? F
(a) Does the provision empower the Governor to make
a new law?
(b) Does the power extend to subordinate legislation?
(c) Can the exercise of the power conferred therein G
override fundamental rights guaranteed under Part
III?
(d) Does the exercise of such power override any parallel
exercise of power by the President under Article
371D? H
924 SUPREME COURT REPORTS [2022] 12 S.C.R.
A (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)?
B
(4) Whether the conditions of eligibility (i.e., origin and cut-off
date) to avail the benefit of reservation in the notification
are reasonable?”
18.1. Question No.1(a), (b), (c) and question no.3 referred to herein
C above are relevant for our purpose.
18.2. After taking into consideration the relevant Constitutional
provisions viz. Article 244, Fifth Schedule, so far as question No.1(a)
viz. whether the provision empower the Governor to make a new law is
concerned, it is observed and held by the Constitution Bench that the
D Governor’s power to make new law is not available in view of the clear
language of Para 5(1) Fifth Schedule does not recognize or confer such
power, but only power is not to apply the law or to apply it with exceptions
or modifications.(para 51)
18.3. Answering question no.1(b) viz. does the power extend to
E subordinate legislation, it is observed and held that Rules framed under
the proviso to Article 309 of the Constitution cannot be said to be an Act
of Parliament or of State Legislature. It is observed and held that the
power of 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, Rules could not have been amended in the exercise
F of the powers conferred under Para 5(1) of the Schedule V. It is further
observed and held that the Rules made under the proviso to Article 309
of the Constitution cannot be said to be an enactment by the State
Legislature. (paras 52 to 57).
18.4. While answering question 1(c) viz. can the exercise of the
G powers conferred under Para 5(1) of Fifth Schedule override
fundamental rights guaranteed under Part III, after considering the
decisions of this Court in the case of Kesavananda Bharati Vs. State
of Kerala reported in (1973) 4 SCC 225; Waman Rao Vs. Union of
India reported in (1981) 2 SCC 362; I.R. Coelho (Dead) by Lrs.
Vs. State of T.N. reported in (2007) 2 SCC 1; S.R. Chaudhuri Vs.
H
SATYAJIT KUMAR & ORS. v. THE STATE OF JHARKHAND & 925
ORS. [M. R. SHAH, J.]
State of Punjab reported in (2001) 7 SCC 126; Ajay Hasia Vs. Khalid A
Mujib Sehravadi reported in (1981) 1 SCC 722; E.P. Royappa Vs.
State of Tamil Nadu reported in (1974) 2 SCC 3; Maneka Gandhi
Vs. Union of India reported in (1978) 1 SCC 248; Ramana Dayaram
Shetty Vs. International Airport Authority of India and Ors.
reported in (1979) 3 SCC 489; Neelima Misra Vs. Harinder Kaur
B
Paintal reported in (1990) 2 SCC 746 and Peerless General Finance
and Investment Co. Ltd Vs. Reserve Bank of India reported in
(1992) 2 SCC 343, it is finally observed and held that the power
conferred on the Governor to deal with the scheduled areas 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 C
power can be exercised by the Parliament or the State subject to the
provisions of Part III of the Constitution. Thereafter, it is ultimately
observed and held that the power of the Governor does not supersede
the fundamental rights guaranteed under Part III of the Constitution. It
has to be exercised subject to Part III and other provisions of the
D
Constitution. It is further observed and held that when Para 5 of the
Fifth Schedule confers power on the Governor, it is not meant to confer
an arbitrary power. The Constitution can never aim to confer any arbitrary
power on the constitutional authorities. They are to be exercised in a
legal and rational manner keeping in view the objectives and provisions
of the Constitution. The powers are not in derogation but in the E
furtherance of the Constitutional aims and objectives. (para 78). While
holding so, the Constitutional Bench also considered the effect of the
non-obstante clause used in para 5(1) of the Fifth Schedule of the
Constitution. While considering the effect of the non-obstante clause, it
is observed in para 69, 70, 74 and 75 as under:
F
“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-a-vis the applicability to other provisions of the
Constitution? Whether the provisions of Para 5(1) prevail over all
other provisions of the Constitution? Whether the fundamental
G
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
H
926 SUPREME COURT REPORTS [2022] 12 S.C.R.
A the amending power and has to be harmoniously construed
consistent with the foundational principles and the basic features
of the Constitution.
XXXXXXXXXXXX
B 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 of the State. The Parliament has the power to
enact the law. It cannot be questioned on the ground that it would
C 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 context and purpose for which it has been carved
D out.”
18.5. As observed herein above, we are also of the opinion that
the non-obstante clause contained in para 5(1) of the Fifth Schedule of
the Constitution shall be read with respect to power of the Governor to
suspend and/or modify the law made by the Parliament despite Articles
E
244 and 245 of the Constitution of India. It cannot be read as conferring
upon the Governor absolute power and/or unfettered power,
notwithstanding the provisions contained in Part III of the Constitution.
19. While answering question no.2 viz. whether 100% reservation
F is permissible under the Constitution, after referring to and / or considering
various decisions of this Court on 100% reservation and after considering
Articles 14, 15 and 16 and other relevant Constitutional provisions and
after taking into consideration decision of this Court in the case of Indra
Sawhney (supra), it is ultimately observed and held that the reservation
that is permissible by protective mode, by making it 100 percent would
G become discriminatory and impermissible. It is further observed and held
that the opportunity of public employment cannot be denied unjustly to
the incumbents, and it is not the prerogative of a few. The citizens have
equal rights, and the total exclusion of others by creating an opportunity
for one class is not contemplated by the founding fathers of the
Constitution of India.
H
SATYAJIT KUMAR & ORS. v. THE STATE OF JHARKHAND & 927
ORS. [M. R. SHAH, J.]
19.1. Thus, in the case of Chebrolu Leela Prasad Rao (supra), A
after considering the relevant Constitutional provisions in detail including
the powers of the Governor conferred in para 5(1) of the Fifth Schedule
of the Constitution of India, it is ultimately observed and held as under:
“166. We answer the questions referred to us thus:
B
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 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 C
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.
Question No.1(a): The Governor is empowered under Para 5(1),
Fifth Schedule of the Constitution, to direct that any particular D
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/ modification of the Act of Parliament
or State legislature. The power to make new laws/regulations, is E
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 F
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.
Question No.1(c): The Governor’s power under Para 5(1) of the
Fifth Schedule to the Constitution is subject to some restrictions, G
which have to be observed by the Parliament or the legislature of
the State while making law and cannot override the fundamental
rights guaranteed 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 H
928 SUPREME COURT REPORTS [2022] 12 S.C.R.
A 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.
Question No.2: G.O.Ms. No.3/2000 providing for 100 per cent
B 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
classification made underArticle 16(1).Once the reservation has
been provided to Scheduled Tribes under Article 16(4), no such
C 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 unreasonable and arbitrary one.”
D
20. Applying law laid down by the Constitution Bench of this Court
in the case of Chebrolu Leela Prasad Rao (supra), to the facts of the
case on hand, the impugned Order/ Notification No.5938 and the Order
No.5939 dated 14.07.2016 providing 100% reservation for the local
residents of concerned Scheduled Districts/ Areas only can be said to
E
be
(1) beyond the scope and ambit of powers conferred upon the
Governor under para 5(1) of the Fifth Schedule of the
Constitution of India;
F (2) 100% reservation provided for the local residents of the
concerned Scheduled Districts / Areas only would be
violative of Article 16(2) of the Constitution of India and
affecting rights of the other candidates / citizens of non-
scheduled areas / Districts guaranteed under Part III of
G the Constitution of India;
(3) the exercise of powers by the Governor under para 5(1) of
the Fifth Schedule of the Constitution of India modifying
Recruitment Rules, 2015 which are framed under Article
309 of the Constitution of India which can be said to be
H subordinate legislation and cannot be said to be an Act or
SATYAJIT KUMAR & ORS. v. THE STATE OF JHARKHAND & 929
ORS. [M. R. SHAH, J.]
the Law made by the Parliament and / or State Legislature A
is beyond the scope and ambit of Governor’s power under
para 5(1) of the Fifth Schedule of the Constitution of India.
21. The submission on behalf of the appellants and State that the
decision of this Court in the case of Chebrolu Leela Prasad Rao
(supra) shall not be applicable to the facts of the case on hand inasmuch B
as in the said case there was 100% reservation for Scheduled Tribe
candidates which was held to be violating the rights of the other reserved
category candidates also and that the decision of this Court in the case
of Chebrolu Leela Prasad Rao (supra) is required to be reconsidered
is concerned has no substance. What is required to be considered is the C
ratio decidendi and law laid down by this Court. There is clear law laid
down by Constitution Bench of this Court as noted above. The decision
of the Constitution Bench which is rendered after considering the
relevant constitutional provisions and a number of decisions of this
Court is as such binding on us. It cannot be said that the relevant
Constitutional provisions and/or binding decisions of this Court have D
not been dealt with and/or considered by this Court. The Constitutional
Bench decision of this Court in the case of Chebrolu Leela Prasad
Rao (supra) also cannot be said to be per incuriam ignoring and/or
taking a contrary view than any of the binding decision of this Court.
As such and as observed herein above, we reiterate that we are bound E
by the law laid down by this Court, more particularly, a Constitution
Bench decision of this Court. We see no reason not to follow the binding
Constitution Bench decision of this Court in the case of Chebrolu
Leela Prasad Rao (supra). We see no reason to take a different
view than the view taken by the Constitution Bench of this court in the
case of Chebrolu Leela Prasad Rao (supra). We also see no reason F
to refer the matter to a Larger Bench as prayed by some of the counsel
appearing on behalf of the appellants – candidates belonging to the
Scheduled Areas/ Districts.
22. One other submission which is made by the learned Advocate
General appearing on behalf of the State before the High Court was that G
in order to overcome the factors of low human development indices,
backwardness, poverty etc., in the scheduled districts and to secure justice
- social, economic and political, the notification was issued by the Governor
of the State for protecting the interests of the residents in the scheduled
districts. That even otherwise, it would be of immense benefit to the H
930 SUPREME COURT REPORTS [2022] 12 S.C.R.
A school-going children in the scheduled districts, if they are taught in their
own tribal language by the local teachers, than the outsiders, who may
not be well conversant with the local language. At the outset, it is required
to be noted that such submission was not pressed into service heavily by
any of the counsel appearing on behalf of the appellants before the High
B Court. However, it is to be noted that in the case of Chebrolu Leela
Prasad Rao (supra) the Constitution Bench of this Court also considered
the very submission and negated the same by observing in para 130 and
131 as under:
“130. No law mandates that only tribal teachers can teach in
C 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 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
D 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 by
providing better facilities and other incentives.
E 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 been given to the cause
F 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
G
appointed by providing reservation, ignoring merit in toto.
The ideal approach would be that teachers are selected based
on merit.”
22.1. Even otherwise, it is to be noted that it may be true that so
far as basic education (at the level of primary section) is concerned, it
H
SATYAJIT KUMAR & ORS. v. THE STATE OF JHARKHAND & 931
ORS. [M. R. SHAH, J.]
may help student at the primary level (while providing basic education) A
to be taught in their own tribal language. But the same principle may not
be applicable when question is of providing education at higher level viz.
above 5th standard. Therefore, if the candidates belonging to other areas
(non-Scheduled Areas/ Districts) are given an opportunity to impart
education (who may be more meritorious than the candidates belonging
B
to the Scheduled Areas / Districts) than it will be more beneficial to the
students belonging to the Scheduled Areas and their quality of the
education shall certainly improve. The quality of education of the school-
going children cannot be compromised by giving 100% reservation in
favour of the teachers of the same/some districts and prohibiting the
appointment to more meritorious teachers. C
23. At this stage, it is required to be noted that even the impugned
Order/Notification dated 14.07.2016 and the advertisement providing
100% reservations for local residents of concerned Scheduled Areas/
Districts can be said to be violative of Article 13 of the Constitution of
India also. As observed herein above, the impugned Order/Notification D
making 100% reservation for the local resident of the concerned
Scheduled Districts/Areas is violative of Article 16(2) of the Constitution
of India as it affects the fundamental rights guaranteed to the candidate
belonging to the non-Scheduled Areas guaranteed under part III of the
Constitution of India. As per Article 13 of the Constitution of India, the
E
State shall not make any law which takes away or abridges the rights
conferred by this Part and any law made in contravention of Article
13(2) shall to the extent of the contravention, be void. Therefore, also
impugned Notification/Order/Advertisement making 100% reservation
for the local resident of the concerned Scheduled Areas / Districts
shall be ultra vires Article 13 of the Constitution of India and shall be F
void.
24. Even under Article 16(3) of the Constitution of India, it is the
Parliament alone, which is authorized to make any law prescribing, in
regard to a class or classes of employment or appointment to an office
under the Government of, or any local or other authority within, a State G
of Union Territory, any requirement as to residence within the State or
Union territory prior to such employment or appointment. As per Article
35 of the Constitution of India, notwithstanding anything contained in the
Constitution, the Parliament shall have and the Legislature of a State
shall not have the power to make laws with respect to any of the matters
H
932 SUPREME COURT REPORTS [2022] 12 S.C.R.
A which, under clause (3) of Article 16 may be provided for law made by
Parliament. Therefore, impugned Notification/Order making 100%
reservation for the local resident of the concerned Scheduled Area/
Districts (reservation on the basis of resident) is ultra vires to Article 35
r/w Article 16(3) of the Constitution of India.
B 25. Applying the law laid down by this Court in the case of
Chebrolu Leela Prasad Rao (supra) and in view of the above
discussion and for the reasons stated above, the High Court has not
committed any error in concluding and holding that the Notification
No.5938 and Order No.5939 dated 14.7.2016 issued by the State
Government providing 100% reservation for the local residents of
C
concerned Scheduled Districts/Areas as being unconstitutional and ultra
vires Articles 14, 13(2), 15 and 16(2) of the Constitution of India. It is
rightly observed and held that said Notification and Order would also
violate Articles 16(3) and 35(a-i) of the Constitution of India. The High
Court has also rightly observed and held that aforesaid Notification and
D Order is ultra vires to paragraph 5(1) of the Fifth Schedule of the
Constitution of India. We are in complete agreement with the view taken
by the High Court.
26. Now, so far as the prayer made on behalf of the respective
appellants herein- candidates belonging to the Scheduled Districts / Areas
E who were already appointed and whose appointments are held to be
illegal is concerned and their plea that the judgment of the High Court
may be made applicable prospectively is concerned, the same may not
be accepted. Reliance is placed upon the order passed by this Court in
the case of Chebrolu Leela Prasad Rao (supra), by which, even this
Court saved the appointments already made and the another decision of
F
this Court in the case of Kailash Chand Sharma (supra) is concerned,
such a prayer is not to be accepted. Once the Notification/Order dated
14.07.2016 are held to be ultra vires, as a necessary consequences,
appointments made pursuant to such unconstitutional Notification/Order
shall have to be set aside and such appointments as such cannot be
G regularized. As observed and held by this Court in the case of Secretary,
State of Karnataka and Ors. Vs. Umadevi (supra), there is a
distinction between illegal and irregular appointment and that the former
cannot be regularized.
26.1. Now, so far as reliance placed upon the decision / order
H passed by this Court in the case of Chebrolu Leela Prasad Rao (supra)
SATYAJIT KUMAR & ORS. v. THE STATE OF JHARKHAND & 933
ORS. [M. R. SHAH, J.]
(para 167 to 169) is concerned, at the outset, it is required to be noted A
that before this Court the appointments were made since 1986 onwards
and such appointments continued for a number of years and therefore,
this Court saved the appointments already made which were continued
for a number of years. While saving the appointments already made
(which as such were found to be illegal), this Court specifically observed
B
that “in the peculiar facts and circumstances, the incumbents, who have
been appointed, cannot be said to be at fault and they belong to the
Scheduled Tribes”. Even saving of the appointments was conditional as
observed in para 168.
26.2. Now, so far as reliance placed upon the decision of this
C
Court in the case of Kailash Chand Sharma (supra) in support of
the prayer to apply judgment of the High Court prospectively and/or to
save appointments already made is concerned, it is to be noted that in
the said judgment also in para 47, it is specifically observed by this
Court that the Court has moulded the relief on a consideration of special
facts and circumstances of the case by acting within the framework D
of powers vested in this Court under Article 142 of the Constitution. It
is further observed that even the judgment may not be treated as a
binding precedent in any case that may arise in future. Therefore,
once this Court has specifically observed that the said judgment may
not be treated as a binding precedent in any case that may arise in
E
future, the said judgment ought not to have been relied upon on behalf
of the appellants.
26.3. In the present case, impugned Notification / Order is of the
year 2016. The TGT recruitment process was initiated vide advertisement
dated 28.12.2016 as modified on 04.02.2017 and same came to be
F
challenged during the pendency of the recruitment process in the year
2017 itself. It is also required to be noted that by order dated 21.2.2019
the Division Bench of the High Court directed that notice be published in
the daily newspapers having wide circulation about institution of the writ
petition so that the person interested may intervene in the writ petition.
Pursuant to such notice, several interlocutory applications/intervener G
applications came to be filed, which came to be allowed by the High
Court. Thereafter, by order dated 18.09.2019, taking into consideration
the question of Constitutional importance involved in the matters, the
Division Bench of the High Court referred the matter to be decided by a
Larger Bench. By the same order dated 18.09.2019, the High Court
H
934 SUPREME COURT REPORTS [2022] 12 S.C.R.
A stayed the further implementation and operation of the impugned
Notification No.5938 and Order No.5939 dated 14.7.2016, subject to
the appointments already made, if any. Thus, from the aforesaid it can
be seen that the original writ petitioners are always vigilant and diligent
and approached the High Court at the first available opportunity. Their
valuable right for consideration of their cases for appointment in the
B
Scheduled Districts / Areas have been taken away. They have been
successful before the High Court. Therefore, in the facts and
circumstance of the case, the decision relied upon on behalf of the
appellants to make impugned judgment and order passed by the High
Court prospectively shall not be applicable to the facts of the case on
C hand. In the facts and circumstances of the case, the prayer on behalf
of the appellants herein to make the impugned judgment and order passed
by the High Court applicable prospectively, deserves to be rejected and
is accordingly rejected.
27. However, at the same time and in the facts and circumstances
D of the case and more particularly, by quashing and setting aside the
appointments already made there is a likelihood of more complication
which would not be in the larger public interest. Hence, we are of the
opinion that this is a fit case to mould the relief. Apart from the fact that
the appellants herein – selected candidates belonging to the Scheduled
E Districts/Areas are already working since last about three years, in case
appointments already made are not protected then thousands of schools
in the State of Jharkhand would be without teachers and the ultimate
sufferers would be the children of tribal areas. In view of the impugned
judgment and order passed by the High Court, by which, the High Court
has held all the appointments made in Scheduled Districts/Areas illegal
F and has further directed to go for fresh recruitment, the State will have
to undergo fresh recruitment process which may take considerable time
and, in the meantime, there shall be vacancies and number of schools in
the tribal areas shall be without teachers. Therefore, the Court has to
strike a balance between the rights of the original writ petitioners as well
G as persons/teachers already appointed (whose appointments are held to
be illegal) and also the public interest. Hence, we are of the opinion that
while moulding the relief, instead of initiating a fresh recruitment process,
if directions are issued for preparation of fresh selection list based on
revised merit and based on already published cut off obtained by the last
selected candidate in each TGT subject against respective categories.,
H
SATYAJIT KUMAR & ORS. v. THE STATE OF JHARKHAND & 935
ORS. [M. R. SHAH, J.]
it will meet ends of justice and striking the balance between the competing A
rights so that persons already appointed may not have to lose their
employment/job and at the same time the candidates belonging to the
non-Scheduled Districts/Areas may also get their opportunity for
appointment as a teacher on merits in the Scheduled Districts/Areas.
We are of the view that no useful purpose will be served to go in for
B
fresh/de novo recruitment process as directed by the High Court in the
impugned judgment and order.
28. In view of the above discussion and for the reasons stated
above, we uphold the common impugned judgment and order passed by
the High Court declaring the impugned Notification/Order dated C
14.07.2016 as unconstitutional and ultra vires Articles 14, 16(2), 16(3)
and 35(a-i) of the Constitution of India. We are in complete agreement
with the view taken by the High Court. Present Appeals challenging the
impugned common judgment and order passed by the High Court are
hereby dismissed to the aforesaid extent.
D
However, at the same time, the directions issued by the High
Court in the impugned judgment and order while setting aside all the
appointments made pursuant to the Notification / Order dated 14.07.2016
and Advertisement No.21 of 2016 dated 28.12.2016 as modified on
04.12.2017 and to go in for fresh/de novo recruitment process for the
Scheduled Areas/Districts is hereby modified. It is now directed that E
instead of fresh/de novo recruitment process by setting aside the
appointments already made in the Scheduled Districts/Areas, the State
shall revise the merit list based on the already published cut off obtained
by the last selected candidates in each TGT subject against the respective
categories with respect to entire State and respective candidates belonging F
to the non-Scheduled Areas and Scheduled Areas (Districts) shall be
adjusted accordingly on the basis of individual merit of the candidates.
The present directions are issued considering the peculiar facts and
circumstances of the case and more particularly considering the fact
that there are already vacant posts of teachers in the State (in both
Scheduled and non-Scheduled Area). We are of the view that if the G
appointments already made are set aside and fresh de novo recruitment
process for such posts is initiated, a number of schools in the Scheduled
Areas shall be without any teacher which may ultimately affect larger
public interest and education of concerned children in the Scheduled
Areas.
H
936 SUPREME COURT REPORTS [2022] 12 S.C.R.
A Present direction is issued in exercise of powers under Article
142 of the Constitution of India in the larger public interest of Scheduled
Areas/Districts.
Present appeals are partly allowed to the aforesaid extent
modifying the impugned common judgment and order passed by the High
B Court as observed herein above.
In the facts and circumstances of the case, there shall be no order
as to costs.
Divya Pandey Appeals partly allowed.
C (Assisted by : Mahendra Yadav, LCRA)
D
E
F
G
H
Search Indian case law
Ask in plain English, not just keywords. 25,000 AI words free, no card.
Try "Reservation"Sign in to search