CHEBROLU LEELA PRASAD RAO & ORS. v. STATE OF A.P. & ORS.

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49Copy pinpoint49. The exceptions and modifications are created by the law, which is already applicable in the area. It is not the formulation of a new law which is contemplated under Para 5(1) of Schedule V. No new law can be formulated while exercising power under Para 5(1) of Schedule V. The power of modification cannot extend to re-writing the entire statute. The power cannot be used to supplant the law, which is applicable. The B law has to be applied only with exceptions or modifications. It cannot totally supersede the existing law, which is wholly opposed to the idea of applicable law as in that case it would tantamount to the new law and not the modification or exception or creation of exceptions or modifications to the applicable law. The object and substance of law applicable cannot C be changed within the purview of Para 5(1), though the applicability of applicable law can be excluded. In case the Governor decides the law to remain applicable, he has the power only to create exceptions and to modify the same, not to create a new one juxtaposed to the same applicable law.

50Copy pinpoint50. The A.P. Regulation of Reservation and Appointment to Public Services Act, 1997, deals with reservation in the State in the field of public services. G.O. Ms. No.3 of 2000 did not amend the said Act. The provisions of the other Acts mentioned in the notification did not deal with the extent of reservation. Sections 78 and 79 of the A.P. Education Act, 1982 and Sections 169, 195, and 268 of the A.P. Panchayati Raj E Act, 1994, are not related to reservation. The rules were framed under the proviso to Article 309. They were not framed under the main provision by the legislature. The Governor in the exercise of power under Para 5(1) of Schedule V could have amended the Public Services Act, 1997, or direct it not to apply to Scheduled Areas. The creation of 100 per cent F reservation had the effect of making a new law under Para 5(1) without reference to the Act of State or Central legislation. Independently of that power could not be exercised within the purview of Para 5(1) of Schedule V to the Constitution of India. Even otherwise, even if the Act of 1997 would have been modified by the Governor, 100% reservation could not have been provided. G

51Copy pinpoint51. We are of the opinion that the Governor’s power to make new law is not available in view of the clear language of Para 5(1), Fifth Schedule does not recognise or confer such power, but only power is not to apply the law or to apply it with exceptions or modifications. Thus, notification is ultra vires to Para 5(1) of Schedule V of the Constitution. H

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In Re: Question No.1(b): Does the power extend to subordinate legislation?

52Copy pinpoint52. G.O. Ms. No.3/2000 refers to various provisions and Sections 78 and 79 of the A.P. Education Act, 1982. There is also reference to sections 169, 195, and 268 of the A.P. Panchayat Raj Act, 1994. None of the aforesaid provisions deals with reservation of posts. The third reference is about the A.P. State and Subordinate Service Rules, 1996, which were framed in exercise of the powers conferred by the proviso of Article 309 of the Constitution of India. Rule 22 of A.P. State and Subordinate Services Rules, 1996, deals with reservation. The rules have been framed under proviso to Article 309 of the Constitution. C

53Copy pinpoint53. The Andhra Pradesh Regulation of Reservation and Appointment to Public Services Act, 1997, was enacted to provide reservations. It mandatesto ensure that reservation provided under Rule 22 is followed scrupulously, and the provisions made in the rules are not violated. In the A.P. Regulation of Reservation and Appointment Act, the percentage of reservation has not been provided to respective D Scheduled Castes, Scheduled Tribes and Backward classes.

54Copy pinpoint54. Rules 22 and 22A, which provide for reservation for Scheduled Castes, Scheduled Tribes, backward classes and women have been framed under the proviso to Article 309 of the Constitution of India. They are not to partake with an Act of Parliament or State legislature. E

In substance, Rules 22 and 22A framed under Article 309 have been amended, which could not have been done as that is not the Act of the Parliament or the legislature of the State. Thus, the Governor could not have exercised power concerning rule framed under the proviso to Article 309 of the Constitution. F

55Copy pinpoint55. In B.S. Yadav & Ors. v. State of Haryana &Ors., AIR 1981 SC 561, this Court held that the rule made by the Governor under the proviso is also the law but, at the same time, it cannot be said in view of the aforesaid decision that the Parliament or the State legislature made the rules under the proviso to Article 309 of the Constitution. G

56Copy pinpoint56. Learned counsel on behalf of the State argued that Para 5(1) of Schedule V empowers the Governor to make laws, and it is a legislative function, and any order of the Governor shall be treated as legislation. The impugned order shall have to be treated as legislation and can only be tested on the parameters of competence and violation of the H

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Act of Parliament or the State legislature, we cannot add subordinate A legislation in the ken of Para 5(1). The Governor can make a decision not to apply Parliamentary law or State law to scheduled areas and modify such law.

57Copy pinpoint57. The rules framed under the proviso to Article 309 of the Constitution cannot be said to be the Act of Parliament or State legislature. B Though the rules have the statutory force, they cannot be said to have been framed under any Act of Parliament or State legislature. The rules remain in force till such time the legislature exercises power. The power of the Governor under Para 5(1) of Schedule V of the Constitution is restricted to modifying or not to apply, Acts of theParliament or legislature of the State. Thus, the rules could not have been amended in the exercise of the powers conferred under Para 5(1) of Schedule V. The rules made under proviso to Article 309 of the Constitution cannot be said to be an enactment by the State legislature. Thus, in our opinion, it was not open to the Governor to issue the impugned G.O. No.3/2000. In re: Question No.1(c): Can the exercise of the power conferred in Para 5 of the Fifth Schedule override fundamental rights guaranteed under Part III?

58Copy pinpoint58. Manifold arguments are made in this regard. Firstly, it was argued on behalf of the respondents that the basic structure doctrine is inapplicable upon the Constitution’s original text. It must not be employed to test the validity of the impugned action. The fifth Schedule under Article 244(1) of the Constitution is part of the original text, and hence, it must not be tested under the Basic Structure Doctrine. Reliance has been placed on Kesavananda Bharti v. State of Kerala, (1973)4 SCC 225 in which this Court laid down that Constitutional amendments post- F 1973 can be struck down if they violate the Basic Structure Doctrine.

59Copy pinpoint59. Reliance has also been placed on Waman Rao and Ors. v. Union of India and Ors., (1981) 2 SCC 362, in which this Court opined thus: “49. We propose to draw a line, treating the decision in G Kesvananda Bharati, (1973) 4 SCC 225, as the landmark. Several Acts were put in the Ninth Schedule prior to that decision on the supposition that the power of Parliament to amend the Constitution was wide and untrammelled. The theory that the Parliament cannot exercise its amending power to damage or destroy the basic H

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A structure of the Constitution was propounded and accepted for the first time in Kesavananda Bharati, (1973) 4 SCC 225, is one reason for upholding the laws incorporated into the Ninth Schedule before April 24, 1973, on which date the judgment in Kesavananda Bharati, (1973) 4 SCC 225, was rendered. A large number of properties must have changed hands, and several new titles must have come into existence on the faith and belief that the laws included in the Ninth Schedule were not open to challenge on the ground that they were violative of Articles 14, 19 and 31. We would not be justified in upsetting settled claims and titles and in introducing chaos and confusion into the lawful affairs of a fairly orderly society.

50. The second reason for drawing a line at a convenient and relevant point of time is that the first 66 items in the Ninth Schedule, which were inserted prior to the decision in Kesavananda Bharati, (1973) 4 SCC 225, mostly pertain to laws of agrarian reforms. There are a few exceptions amongst those 66 items, like Items 17, 18, 19, which relate to Insurance, Railways and Industries. But almost all other items would fall within the purview of Article 31-A(1)(a). In fact, Items 65 and 66, which were inserted by the 29th Amendment, are the Kerala Land Reforms (Amendment) Acts of 1969 and 1971 respectively, which were specifically challenged in Kesavananda Bharati, (1973) 4 SCC 225. That challenge was repelled.

51. Thus, insofar as the validity of Article 31-B read with the Ninth Schedule is concerned, we hold that all Acts and Regulations included in the Ninth Schedule prior to April 24, 1973 will receive the full protection of Article 31-B. Those laws and regulations will not be open to challenge on the ground that they are inconsistent with or take away or abridge any of the rights conferred by any of the provisions of Part III of the Constitution. Acts and Regulations, which are or will be included in the Ninth Schedule G on or after April 24, 1973 will not receive the protection of Article 31-B for the plain reason that in the face of the judgment in Kesavananda Bharati, (1973) 4 SCC 225, there was no justification for making additions to the Ninth Schedule with a view to conferring a blanket protection on the laws included therein. The various constitutional amendments, by which additions were H

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made to the Ninth Schedule on or after April 24, 1973, will be valid only if they do not damage or destroy the basic structure of the Constitution.” (emphasis supplied)

60Copy pinpoint60. Reliance has also been placed on the decision of this Court in I.R. Coelho (Dead) by LRs. v. State of T.N., (2007) 2 SCC 1, decided by a nine-Judge Bench of this Court thus: “151. The effect of the application of the limitation of the basic structure to a scheduled Act is that Article 31-B read with the Ninth Schedule is no longer not subject to judicial review. Judicial review is, therefore, very much present.” C

Thus, it was urged that since the original text of the Constitution is contained in the Fifth Schedule, it would not be permissible to test the same in terms of the basic structure. Article 14is the part of the basic structure; therefore, it cannot be used to dilute the non-obstante clause of Para 5(1) of Fifth Schedule, and action taken thereunder cannot be tested on the anvil of violation of fundamental rights.

61Copy pinpoint61. In our opinion, the submission based on Basic Structure Doctrine is not at all germane to the instant case to decide the validity of the provisions contained in Para 5 of Fifth Schedule of the Constitution or validity of any other Constitutional amendment. We are deciding the validity of the action of the Governor issuing impugned notification, providing 100 per cent reservation to Scheduled Tribes in the Scheduled Areas. Every action of the legislature, whether it is Parliament or State, has to conform with the rights guaranteed in Part III of the Constitution. The original scheme of the Constitution itself so provides; thus, the argument based upon Basic Structure Doctrine does not hold the validity of the notification as that action is taken under the provisions, and the provisions in Para 5 Schedule V do not override the rights guaranteed in Part III of the Constitution. The limitations on the legislature in the field of legislation are applicable to Governor also. G

62Copy pinpoint62. It was next argued that there is absolute discretion with the Governor to make modification and exception as to the applicability of laws; however, absolute discretion cannot be said to be exercisable arbitrarily. The Constitution has not conferred any arbitrary poweron any constitutional functionary. Arbitrariness is an antithesis to the concept of equality, which is enshrined in Article 14 of the Constitution, and the H same is its spirit and soul.

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63Copy pinpoint63. The provisions of the Constitution are required to be interpreted keeping in view the will of the makers thereof as held in S.R. Chaudhuri v. State of Punjab &Ors., (2001) 7 SCC 126 thus: “33. Constitutional provisions are required to be understood and interpreted with an object-oriented approach. A Constitution must not be construed in a narrow and pedantic sense. The words used may be general in terms but, their full import and true meaning have to be appreciated considering the true context in which the same are used and the purpose which they seek to achieve. Debates in the Constituent Assembly referred to in an earlier part of this judgment clearly indicate that a non-member’s inclusion in the Cabinet was considered to be a “privilege” that extends only for six months, during which period the member must get elected, otherwise he would cease to be a Minister. It is a settled position that debates in the Constituent Assembly may be relied upon as an aid to interpret a constitutional provision because it is the function of the court to find out the intention of the framers of the Constitution. We must remember that a Constitution is not just a document in solemn form, but a living framework for the Government of the people exhibiting a sufficient degree of cohesion and its successful working depends upon the democratic spirit underlying it being respected in letter and in spirit. The debates clearly indicate the “privilege” to extend “only” for six months.”

64Copy pinpoint64. The very concept of equality, which is sought to be achieved by protective discrimination, is not just a matter of classification but also aims against arbitrariness. Equality is the antithesis of arbitrariness. In Col. A.S. Iyerand Ors. v. V. Balasubramanyam, (1980) 1 SCC 634, F the Court as to the doctrine of classification observed: “57. x xx This tendency, in an elitist society with a diehard caste mentality, is a disservice to our founding faith, even if judicially sanctified. Subba Rao, J., hit the nail on the head when he cautioned in Lachhman Das v. State of Punjab, (1963) 2 SCR G 353, 395: AIR 1963 SC 222: “The doctrine of classification is only a subsidiary rule evolved by courts to give a practical content to the said doctrine. Over-emphasis on the doctrine of classification or an anxious and sustained attempt to discover some basis for classification may gradually and imperceptibly deprive

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the article of its glorious content. That process would inevitably end in substituting the doctrine of classification for the doctrine of equality; the fundamental right to equality before the law and the equal protection of the laws may be replaced by the doctrine of classification.”

65Copy pinpoint65. In Ajay Hasia and Ors. v. Khalid Mujib Sehravardi and B Ors., (1981) 1 SCC 722, the Court considered the doctrine of classification. The classification is not only to be reasonable;it must satisfy the requisite conditions. Whenever there is arbitrariness in State action, whether it be of the legislature or the executive or authority under Article 12, the provisions of Article 14 immediately springs into action to strike down such an action. The Court held: C

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A It is a founding faith, to use the words of Bose, J., ‘a way of life’, and it must not be subjected to a narrow pedantic or lexicographic approach. We cannot countenance any attempt to truncate its all-embracing scope and meaning, for to do so would be to violate its activist magnitude. Equality is a dynamic concept with many aspects and dimensions and it cannot be B “cribbed, cabined and confined” within traditional and doctrinaire limits. From a positivistic point of view, equality is antithetic to arbitrariness. In fact, equality and arbitrariness are sworn enemies; one belongs to the rule of law in a republic while the other, to the whim and caprice of an absolute monarch. C Where an act is arbitrary it is implicit in it that it is unequal both according to political logic and constitutional law and is therefore violative of Article 14, and if it affects any matter relating to public employment, it is also violative of Article 16. Articles 14 and 16 strike at arbitrariness in State action and ensure fairness and equality of treatment.” D This vital and dynamic aspect which was till then lying latent and submerged in the few simple but pregnant words of Article 14 was explored and brought to light in Royappa case, (1974) 2 SCR 348: (1974) 4 SCC 3, and it was reaffirmed and elaborated by this Court in Maneka Gandhi v. Union of India, (1978) 1 SCC 248, E where this Court again speaking through one of us (Bhagwati, J.) observed: (SCC pp. 283-84, para 7) “Now the question immediately arises as to what is the requirement of Article 14: What is the content and reach of the great equalising principle enunciated in this Article? There F can be no doubt that it is a founding faith of the Constitution. It is indeed the pillar on which rests securely the foundation of our democratic republic. And, therefore, it must not be subjected to a narrow, pedantic or lexicographic approach. No attempt should be made to truncate its all-embracing scope and meaning, G for to do so would be to violate its activist magnitude. Equality is a dynamic concept with many aspects and dimensions and it cannot be imprisoned within traditional and doctrinaire limits.... Article 14 strikes at arbitrariness in State action and ensures fairness and equality of treatment. The principle of reasonableness, which legally as well as philosophically, is an H

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essential element of equality or non-arbitrariness pervades A Article 14 like a brooding omnipresence.” This was again reiterated by this Court in International Airport Authority case, (1979) 3 SCC 489, at p. 1042 (SCC p. 511) of the Report. It must therefore now be taken to be well settled that what Article 14 strikes at is arbitrariness because an action that is arbitrary must necessarily involve negation of equality. The doctrine of classification which is evolved by the courts is not paraphrase of Article 14 nor is it the objective and end of that article. It is merely a judicial formula for determining whether the legislative or executive action in question is arbitrary and therefore constituting denial of equality. If the classification is not reasonable and does not satisfy the two conditions referred to above, the impugned legislative or executive action would plainly be arbitrary and the guarantee of equality under Article 14 would be breached. Wherever therefore there is arbitrariness in State action whether it be of the legislature or of the executive or of an “authority” D under Article 12, Article 14 immediately springs into action and strikes down such State action. In fact, the concept of reasonableness and non-arbitrariness pervades the entire constitutional scheme and is a golden thread which runs through the whole of the fabric of the Constitution.” E

66Copy pinpoint66. In E.P. Royappa v. State of Tamil Nadu & Anr., (1974) 4 SCC 3, concerning the concept of equality and arbitrariness in action, in the context of Articles 14 and 16, the Court held: “85. The last two grounds of challenge may be taken up together for consideration. Though we have formulated the third ground of challenge as a distinct and separate ground, it is really in substance and effect merely an aspect of the second ground based on violation of Articles 14 and 16. Article 16 embodies the fundamental guarantee that there shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State. Though enacted as a distinct and independent fundamental right because of its great importance as a principle ensuring equality of opportunity in public employment which is so vital to the building up of the new classless egalitarian society envisaged in the Constitution, Article 16 is only an instance of the application of the concept of equality enshrined in Article 14. In H

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A other words, Article 14 is the genus while Article 16 is a species. Article 16 gives effect to the doctrine of equality in all matters relating to public employment. The basic principle which, therefore, informs both Articles 14 and 16 is equality and inhibition against discrimination. Now, what is the content and reach of this great equalising principle? It is a founding faith, to use the words of B Bose. J., “a way of life”, and it must not be subjected to a narrow pedantic or lexicographic approach. We cannot countenance any attempt to truncate its all-embracing scope and meaning, for to do so would be to violate its activist magnitude. Equality is a dynamic concept with many aspects and dimensions and it cannot be C “cribbed, cabined and confined” within traditional and doctrinaire limits. From a positivistic point of view, equality is antithetic to arbitrariness. In fact equality and arbitrariness are sworn enemies; one belongs to the rule of law in a republic while the other, to the whim and caprice of an absolute monarch. Where an act is arbitrary, it is implicit in it that it is unequal both according to political logic and constitutional law and is therefore violative of Article 14, and if it effects any matter relating to public employment, it is also violative of Article 16. Articles 14 and 16 strike at arbitrariness in State action and ensure fairness and equality of treatment. They require that State action must be based on valid relevant principles applicable alike to all similarly situate and it must not be guided by any extraneous or irrelevant considerations because that would be denial of equality. Where the operative reason for State action, as distinguished from motive inducing from the antechamber of the mind, is not legitimate and relevant but is extraneous and outside the area of permissible considerations, it would amount to mala fide exercise of power and that is hit by Articles 14 and 16. Mala fide exercise of power and arbitrariness are different lethal radiations emanating from the same vice: in fact the latter comprehends the former. Both are inhibited by Articles 14 and 16.”

67Copy pinpoint67. In Maneka Gandhi v. Union of India & Anr., (1978) 1 SCC 248, this Court held that fundamental rights are not distinct and mutually exclusive rights. Each freedom has its dimensions. The law is not freed from the necessity to meet the challenge of another guaranteed freedom. Thus, the law effecting personal liberty under Article 21 will also have to satisfy the test under Articles 14 and 19. In majority opinion, Beg, J. observed:

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“202. Articles dealing with different fundamental rights contained in Part III of the Constitution do not represent entirely separate streams of rights which do not mingle at many points. They are all parts of an integrated scheme in the Constitution. Their waters must mix to constitute that grand flow of unimpeded and impartial Justice (social, economic and political), Freedom (not only of thought, expression, belief, faith and worship, but also of association, movement, vocation or occupation as well as of acquisition and possession of reasonable property), of Equality (of status and of opportunity, which imply absence of unreasonable or unfair discrimination between individuals, groups, and classes) and of Fraternity (assuring dignity of the individual and the unity of the nation), which our Constitution visualises. Isolation of various aspects of human freedom, for purposes of their protection, is neither realistic nor beneficial but would defeat the very objects of such protection.” Justices Bhagwati, Untwalia and Fazal Ali observed: D “The nature and requirement of the procedure under Article 21

7. Now, the question immediately arises as to what is the requirement of Article 14 : what is the content and reach of the great equalising principle enunciated in this article? There can be no doubt that it is a founding faith of the Constitution. It is indeed the pillar on which rests securely the foundation of our democratic republic. And, therefore, it must not be subjected to a narrow, pedantic or lexicographic approach. No attempt should be made to truncate its all-embracing scope and meaning, for to do so would be to violate its activist magnitude. Equality is a dynamic concept with many aspects and dimensions and it cannot be imprisoned within traditional and doctrinaire limits. We must reiterate here what was pointed out by the majority in E.P. Royappa v. State of Tamil Nadu, (1974) 2 SCR 348, namely, that “from a positivistic point of view, equality is antithetic to arbitrariness. In fact equality and arbitrariness are sworn enemies; one belongs to the rule of law in a republic, while the other, to the whim and caprice of an absolute monarch. Where an act is arbitrary, it is implicit in it that it is unequal both according to political logic and constitutional law and is therefore violative of Article 14”. Article 14 strikes at arbitrariness in State action and ensures fairness and equality of H

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A treatment...The principle of reasonableness, which legally as well as philosophically, is an essential element of equality or non- arbitrariness pervades Article 14 like a brooding omnipresence and the procedure contemplated by Article 21 must answer the test of reasonableness in order to be in conformity with Article

14. It must be “right and just and fair” and not arbitrary, fanciful B or oppressive; otherwise, it would be no procedure at all and the requirement of Article 21 would not be satisfied.” Krishna Iyer, J. observed: “96. A thorny problem debated recurrently at the bar, turning on C Article 19, demands some juristic response although avoidance of overlap persuades me to drop all other questions canvassed before us. The Gopalan verdict, with the cocooning of Article 22 into a self-contained code, has suffered suppression at the hands of R.C. Cooper, (1970) 3 SCR 530. By way of aside, the fluctuating fortunes of fundamental rights, when the proletarist and the D proprietarist have asserted them in Court, partially provoke sociological research and hesitantly project the Cardozo thesis of sub-conscious forces in judicial noesis when the cycloramic review starts from Gopalan, moves on to In re Kerala Education Bill, 1959 SCR 995 and then on to All-India Bank Employees’ E Association, (1962) 3 SCR 269, next to Sakal Papers, (1962) 3 SCR 842, crowning in Cooper and followed by Bennett Coleman, (1973) 2 SCR 757 and Shambhu Nath Sarkar, (1973) 1 SCC 856. Be that as it may, the law is now settled, as I apprehend it, that no article in Part III is an island but part of a continent and the conspectus of the whole part gives the direction and correction F needed for interpretation of these basic provisions. Man is not dissectible into separate limbs and, likewise, cardinal rights in an organic constitution, which make man human have a synthesis. The proposition is indubitable that Article 21 does not, in a given situation, exclude Article 19 if both rights are breached.”

68Copy pinpoint68. In Neelima Misra v. Harinder Kaur Paintal & Ors., (1990) 2 SCC 746, this Court held that an administrative action, whether legislative, administrative or quasi-judicial must not be illegal, irrational or arbitrary. The non-obstante clause as to what it excludes is to be considered only in light of extent of power conferred on the Governor to issue a notification, to order that Act of the legislature shall not apply and

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may make exceptions and modifications. However, at the same time power is to be exercised within bounds of legislative power conferred on the legislature. The special control is conferred upon the Governor to direct that any Act shall not apply, which could not otherwise apply or be applicable in the area without such exceptions or modifications as ordered by the Governor. B Effect of the non-obstante clause:

69Copy pinpoint69. Para 5(1) of the Fifth Schedule of the Constitution starts with a non-obstante clause. What is the effect of the non-obstante clause vis-à-vis the applicability to other provisions of the Constitution? Whether the provisions of Para 5(1) prevail over all other provisions of the C Constitution? Whether the fundamental rights in Part III of the Constitution are inapplicable and need not be satisfied?

70Copy pinpoint70. The provision of the Fifth Schedule beginning with the words “notwithstanding anything in this Constitution” cannot be construed as taking away the provision outside the limitations on the amending power D and has to be harmoniously construed consistent with the foundational principles and the basic features of the Constitution.

71Copy pinpoint71. In R.C. Poudyal v. Union of India & Ors., 1994 Supp. (1) SCC 324, this Court considered the question whether the non-obstante clause (f) to Article 371F inserted by the Constitution (36th Amendment) E Act, 1975 containing a special provision for the State of Sikkim. The Governor of Sikkim has exclusive responsibility for peace and equitable arrangement, for social and economic advancement and various other provisions have been made that the non-obstante clause is contained in Article 371-F, cannot be construed as taking clause (f) of Article 371F outside the limitation on the amendment power itself. This Court opined F that: “102. It is, however, urged that Article 371-F starts with a non- obstante clause, and therefore the other provisions of the Constitution do not limit the power to impose conditions. But Article 371-F cannot transgress the basic features of the Constitution. G The non-obstante clause cannot be construed as taking clause (f) of Article 371-F outside the limitations on the amendment power itself. The provisions of clause (f) of Article 371-F and Article 2 have to be construed harmoniously consistent with the foundational principles and basic features of the Constitution. Whether clause H

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A (f) has the effect of destroying a basic feature of the Constitution depends, in turn, on the question whether reservation of seats in the legislature based on ethnic group is itself destructive of democratic principle. Whatever the merits of the contentions be, it cannot be said that the issues raised are non-justiciable.

B 103. In Mangal Singh v. Union of India, (1967) 2 SCR 109, 112 this Court said: “Power with which the Parliament is invested by Articles 2 and 3, is power to admit, establish, or from new States which conform to the democratic pattern envisaged by the Constitution; and the power which the Parliament may exercise by law is supplemental, incidental or consequential to the admission, establishment or formation of a State as contemplated by the Constitution, and is not power to override the constitutional scheme.”

104. Even if clause (f) of Article 371-F is valid, if the terms and conditions stipulated in a law made under Article 2 read with clause (f) of Article 371-F go beyond the constitutionally permissible latitudes, that law can be questioned as to its validity. The contention that the vires of the provisions and effects of such a law are non-justiciable cannot be accepted.”

72Copy pinpoint72. In State of Sikkim v. Surendra Prasad Sharma & Ors., (1994) 5 SCC 282, this Court held that the laws, which were in force before the commencement of the Constitution of India, must be consistent with Part III of the Constitution to continue to be in force. This Court opined:

F “11. From the above constitutional scheme what emerges is that the laws which were in force in the territory of India immediately before the commencement of the Constitution shall continue in force therein until altered, repealed or amended by a competent legislature or authority except to the extent inconsistent with Part III of the Constitution. However, notwithstanding anything in the G Constitution, Parliament was empowered to make laws inter alia with respect to any matter referred to in Article 16(3). Thus, Parliament could prescribe by law the requirement as to residence within a State or Union Territory and if such a law is made nothing in Article 16 will stand in the way of such prescription. Since Article 16(3) is in Part III of the Constitution, the law, if made, H

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would clearly be intra vires the Constitution. By virtue of Article A 35(b) any law in force immediately before the commencement of the Constitution in relation to any matter in Article 16(3) shall continue in force, notwithstanding anything in the Constitution. The expression ‘law in force’ has the meaning assigned to it in Article 372, Explanation I. This is the conjoint effect of Articles B 13, 16(3), 35(b) and 372 of the Constitution. Since Sikkim was never a part of the territory of India immediately before the commencement of the Constitution, the High Court has ruled out the applicability of the said provisions in this case. Article 2 provides that Parliament may by law admit into the Union, or establish, new States on such terms and conditions as it thinks fit. The law so made must conform to the requirements of Article 13. That is the view expressed in Poudyal case, 1944 Supp (1) SCC 324. But the historical events preceding its inclusion in the territory of India must be borne in mind. Sikkim during the British period was ruled by a monarch called the Chogyal. After India became free there was a popular demand from the people of Sikkim for its merger with India. Pursuant to the sentiments expressed by the People of Sikkim, a treaty was entered into between India and the Chogyal short of merger which was followed up by consequential changes. However, the public demand became violent forcing the Chogyal to request the Union Government to assume the responsibility for good Government. Ultimately, on 8-5-1973, a formal agreement was signed between the Chogyal and the political leaders of Sikkim on the one side and the Government of India on the other in pursuance whereto the people of Sikkim were to enjoy certain democratic rights. This development would show that Sikkim which was a British protectorate under the British paramountcy until 1947 came within the protectorate of India under the treaty of 3- 12-1950 and later became an associate State by the insertion of Article 2-A in the Constitution by the 35th Amendment on the terms and conditions set out in the Tenth Schedule and soon thereafter by the 36th Amendment Article 2-A was deleted and full statehood under the Union of India was conferred on the terms and conditions incorporated in the newly added Article 371-F. These constitutional changes had to be introduced in 1975 in reciprocation of the understanding on which Sikkim agreed to its merger with India and to fulfil the aspirations of the Sikkimese H

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A people. The terms and conditions for merger of Sikkim found in Article 371-F have, therefore, to be viewed in this background.”

73Copy pinpoint73. However, under the special agreement special provisions contained in Article 371-F(k), all laws in force in the State of Sikkim were protected until amended or repealed to ensure a smooth transition from Chogyal’s rule to democratic rules under the Constitution. Article 371-F(l) enshrines that many of such existing laws may be inconsistent with the Constitution, as such immunity was granted in the transitional period, this Court in State of Sikkim v. Surendra Prasad Sharma (supra)considered non-obstante clause in Article 371-F and observed that the laws in force would have had to meet the test of Article 13 of the Constitution. It was held: “22. Article 371-F, is as stated earlier, a special constitutional provision concerning the State of Sikkim. The reason why it begins with a nonobstante clause is that the matters referred to in the various clauses immediately following required a protective cover so that such matters are not struck down as unconstitutional because they do not satisfy the constitutional requirement. Unless such immunity was granted, ‘the laws in force’ would have had to meet the test of Article 13 of the Constitution. Same being the objective, existing laws or laws in force came to be protected by clause (k) added to Article 371-F. The said laws in force in the State of Sikkim were, therefore, protected, until amended or repealed, to ensure a smooth transition from the Chogyal’s rule to the democratic rule under the Constitution. Inherent in clause (l) is the assumption that many of such existing laws may be inconsistent with the Constitution and, therefore, the President F came to be conferred with a special power to make adaptations and modifications with a view to making the said rule consistent with the Constitution. Of course, this power had to be exercised within two years from the appointed day. If any adaptation or modification is made in the law in force prevailing prior to the G appointed day, the law would apply subject to such adaptation and modification. It is thus obvious that the adaptation and modification made by the President in exercise of this special power does not have the effect of the law ceasing to be a law in force within the meaning of clause (k) of Article 371-F. Therefore, on the plain language of the said provision it is difficult to hold that the effect H

CHEBROLU LEELA PRASAD RAO & ORS. v. 89 STATE OF A.P. & ORS. [ARUN MISHRA, J.]

of adaptation or modification is to take the law out of the purview of ‘laws in force’.”

74Copy pinpoint74. 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 have extra-territorial operation.

75Copy pinpoint75. 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 out.

76Copy pinpoint76. In Peerless General Finance and Investment Co. Ld. And Anr. v. Reserve Bank of India, (1992) 2 SCC 343, the Court held that the court has to make every endeavour to ensure that the efficacy of fundamental rights is maintained and the legislature is not invested with unlimited power. The Court is to guard against the gradual encroachment and strike down a restriction as soon as it reaches that magnitude of total infringement of the right. The Court observed: “48. x x x The State can regulate the exercise of the fundamental right to save the public from a substantive evil. The existence of the evil as well as the means adopted to check it are the matters for the legislative judgment. But the Court is entitled to consider whether the degree and mode of the regulation is in excess of the requirement or is imposed in an arbitrary manner. The Court has to see whether the measure adopted is relevant or appropriate to the power exercised by the authority or whether it overstepped the limits of social legislation. Smaller inroads may lead to larger inroads and ultimately result in total prohibition by indirect method. If it directly transgresses or substantially and inevitably affects the fundamental right, it becomes unconstitutional, but not where the impact is only remotely possible or incidental. The Court must lift the veil of the form and appearance to discover the true character and the nature of the legislation, and every endeavour should be made to have the efficacy of fundamental right maintained and the legislature is not invested with unbounded power. The Court has, therefore, always to guard against the H

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A gradual encroachments and strike down a restriction as soon as it reaches that magnitude of total annihilation of the right.”

77Copy pinpoint77. In case the argument raised on behalf of the respondent is accepted that the Governor has unfettered power, notwithstanding the provisions contained in Part III of the Constitution, Article 13 of the B Constitution becomes redundant. The power of judicial review of court and legislature would loom into insignificance. There is no power to the legislature or to the Governor to act contrary to the constitutional provisions, and they cannot enact a law in derogation to the provisions contained in Part III of the Constitution. In Chandavarkar S. R. Rao v. Ashalata S. Guram, (1986) 4 SCC 447, it has been held that the effect of the non-obstante clause is that in spite of the provisions of the Act or any other Act mentioned in the non-obstante clause or any contract or document mentioned, the enactment following it will have its full operation or that the provision vested in the non-obstante clause would not be an impediment for the operation of the enactment. In case Governor decides not to apply the Act of the Parliament or legislature of the State or apply them with exceptions and modifications, he is empowered to do so. But it would be subject to the restriction on the very legislative power with which the Parliament or legislature of State suffers from the above- avowed objective devised by the framers of the Constitution.

78Copy pinpoint78. The power is conferred on the Governor to deal with the scheduled areas. It is not meant to prevail over the Constitution. The power of the Governor is pari passu with the legislative power of Parliament and the State. The legislative power can be exercised by the Parliament or the State subject to the provisions of Part III of the Constitution. In our considered opinion, the power of the Governor does not supersede the fundamental rights under Part III of the Constitution. It has to be exercised subject to Part III and other provisions of the Constitution. When Para 5 of the Fifth Schedule confers power on the Governor, it is not meant to be conferral of arbitrary power. The Constitution can never aim to confer any arbitrary power on the constitutional authorities. They are to be exercised in a rational manner keeping in view the objectives of the Constitution. The powers are not in derogation but the furtherance of the constitutional aims and objectives. In Re: Question No.1(d): Whether the exercise of power under the Fifth Schedule of the Constitution overrides any parallel exercise of power by the President under Article 371D?

CHEBROLU LEELA PRASAD RAO & ORS. v. 91 STATE OF A.P. & ORS. [ARUN MISHRA, J.]

79Copy pinpoint79. It was argued on behalf of the appellants that Article 371D A was promulgated in view of geographical disparity in public employment within the State of Andhra Pradesh. The candidates from certain districts/ areas of the State capturing a disproportionately large number of public posts. Article 371D requires the State Government to reorganise class or classes of posts in the State into different local cadres for different parts of the State. The Presidential Order of 1975 was issued providing district/zone as a unit for the local cadre. Whereas, G.O. provided that all the posts of teachers in the schools situated in Scheduled Areas in the State of Andhra Pradesh shall be filled in with the local Scheduled Tribes candidates only. A district or zone is the unit for the local cadre. Whereas on the other hand, the impugned G.O.Ms. No.3 of 2000 provided that all the posts of teachers in the Scheduled Area, forming part of a district, to be filled up by local Scheduled Tribe candidates only. The impugned G.O. reserved all the posts in the Scheduled Area; thus, aspiring candidates in a district/zone in the Scheduled Areas cannot apply for the post of teachers in the district or zone as all the posts have been reserved for local Scheduled Tribe candidates and “they cannot apply outside the district or zone” because of the restrictions under Article 371D of the Constitution.

80Copy pinpoint80. Learned counsel for the appellant further argued that the candidates other than Scheduled Tribe candidates in a district residing in Scheduled Areas cannot apply at all, and they have been deprived of the opportunity of getting public employment. The impugned G.O. takes away the entire opportunity of non-Scheduled Tribe candidates even from applying for the post of teachers. Thus, the impugned G.O. transgresses Article 371D of the Constitution and is unconstitutional. The Governor could not have issued the notification in such a manner in exercise of powers under Para 5 of Fifth Schedule, which is repugnant to the Presidential Order issued under Article 371D. The Governor cannot exercise the powers under Para 5(1) of Fifth Schedule and cannot modify or override the provisions of Article 371D of the Constitution.

81Copy pinpoint81. It was argued on behalf of respondents that there is no repugnancy in the Presidential Order and the impugned notification issued by the Governor. Article 371D also starts with non-obstante clause and conflict between the non-obstante clause as far as possible must be resolved by way of harmonious construction of two conflicting non- obstante clauses as laid down in Jay Engineering Works Limited v. Industry Facilitation Council and Anr., (2006) 8 SCC 677: H

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A “28. Both the Acts contain non obstante clauses. Ordinary rule of construction is that where there are two non obstante clauses, the latter shall prevail. But it is equally well settled that ultimate conclusion thereupon would depend upon the limited context of the statute. (See Allahabad Bank, (2000) 4 SCC 406, para 34.)

B 29. In Maruti Udyog Ltd. v. Ram Lal, (2005) 2 SCC 638, it was observed: (SCC p. 653, para 39) “39. The interpretation of Section 25-J of the 1947 Act as propounded by Mr Das also cannot also be accepted inasmuch as in terms thereof only the provisions of the said chapter shall have effect notwithstanding anything inconsistent therewith contained in any other law including the Standing Orders made under the Industrial Employment (Standing Orders) Act, but it will have no application in a case where something different is envisaged in terms of the statutory scheme. A beneficial statute, as is well known, may receive liberal construction but the same cannot be extended beyond the statutory scheme.”

30. In Sarwan Singh v. Kasturi Lal, (1977) 1 SCC 750, this Court opined: (SCC p. 760, para 20) “When two or more laws operate in the same field and each contains a non obstante clause stating that its provisions will override those of any other law, stimulating and incisive problems of interpretation arise. Since statutory interpretation has no conventional protocol, cases of such conflict have to be decided in reference to the object and purpose of the laws under consideration.” F

31. The endeavour of the court would, however, always be to adopt a rule of harmonious construction.” It was laid down that endeavour of the court would always be to adopt a rule of harmonious construction, and the non-obstante clause must be given effect as to the Parliament intent and not beyond that. It G was also urged that if the latter provision is found to be generic as against the earlier provision, which is a special provision, then the earlier provision shall prevail. Reliance has also been placed on Maharashtra Tubes Ltd. v. State Industrial & Investment Corporation of Maharashtra Ltd. and Anr., (1993) 2 SCC 144. The policy underlying the provisions has to be considered, as observed in Jay Engineering Works (supra).

CHEBROLU LEELA PRASAD RAO & ORS. v. 93 STATE OF A.P. & ORS. [ARUN MISHRA, J.]

The notification issued, according to the Presidential Order, creates district/zonal cadre for teachers. The Governor Order reserved the posts of teachers in the Scheduled Area for Scheduled Tribes. There is no strict conflict between the aforesaid notification, and harmonious construction is possible.

82Copy pinpoint82. It was further urged on behalf of respondents that the State of B Andhra Pradesh was reorganised in the year 1956, and part of the areas falling in the State of Hyderabad, Telugu speaking areas known as Telangana merged with Andhra Pradesh. In the Telangana region, Mulki Rules prevail, which provide for residence as a requirement for public employment. After the reorganisation, the Central Government enacted the A.P. Public Employment (Requirement as to Residence) Act, 1957, C to continue the same. On challenge being made as to the provisions being violative of Article 16(2), this Court in Narasimha Rao v. State of A.P., (1969) 1 SCC 839, opined that the residence requirement as unconstitutional, resulting in agitation demanding division of State. The Parliament amended the Constitution by inserting Article 371D, D empowering the President to issue an order providing equal opportunities to people belonging to different parts of the State in education and public employment. Under para 3 of the Presidential Order, the civil posts in the State were to be organised on local cadres, such as Lower Division Clerks and equivalent Non-Gazetted category and existed Gazetted and Non-Gazetted category in each department. Paras 4 and 5 of the E Presidential Order provided that employees to be allotted to local cadres/ areas, which shall be a unit for all purpose. Under para 6 of the Presidential Order, local areas have to be the basis for various posts making district/ zone, multi zone and State-wide as local areas for all civil posts. Para 8 provided for reservation by way of direct recruitment for local candidates. F Article 371D(10) provided for non-obstante clause to make provisions immune from challenge from Articles 14 and 16 of the Constitution. The operation of Article 371D is confined to providing for reservation in direct recruitment for local candidates and also for various percentages of reservation for locals. Under para 6(1) each district shall be regarded as local area. The action is not violative of Article 371D. It was further G argued on behalf of respondents that the President has issued notification under Article 371D towards the promotion of equality of opportunity. The notification did not deal with Scheduled Areas or employment opportunities in Scheduled Areas. No notification issued by the President under Article 371D collides or is in conflict with the impugned notification. H

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350. Similar logic, which is applicable to Articles 14 and 371D, is also to be relevant in the context of what the Governor does under the Fifth Schedule. Consequently, what the Governor has done to greater equality for Scheduled Areas will not be faulted.

83Copy pinpoint83. The non-obstante clause in Article 371D will not annul the non-obstante clause in Para 5 of the Fifth Schedule. Two constitutional provisions operate in distinct domain. Article 371D was not enacted to be a super imposition on Fifth Schedule. The object and purpose of legislations or provisions with respect to non-obstante clause are distinct. Thus, the court will not see any conflict. Reference has been made to R.S. Raghunath v. State of Karnataka and Ors.,(1991) Supp. 1 SCR 387, Sarwan Singh and Ors. v. Kasturi Lal, (1977) 2 SCR 421, Sanwarmal Kejriwal v. Vishwa Co-operative Housing Society Ltd. and Ors., (1990) 1 SCR 862, The South India Corporation (P) Ltd. v. E The Secretary, Board of Revenue Trivandrum and Ors., (1964) 4 SCR 280, and Dr. Fazal Ghafoor v. Principal, Osmania Medical College, Hyderabad and Ors., (1988) 4 SCC 532.

84Copy pinpoint84. Article 371-D has been inserted in the Constitution of India. Sub-clauses 1, 2 and 10 of Article 371-D are extracted hereunder: F “371D. Special provisions with respect to the State of Andhra Pradesh or the State of Telangana.—(1) The president may by order made with respect to the state of Andhra Pradesh or the State of Telangana provide, having regard to the requirement of each State, for equitable opportunities and facilities for the people G belonging to different parts of such State, in the matter of public employment and in the matter of education, and different provisions may be made for various parts of the States. (2) An order made under clause (1) may, in particular,—

CHEBROLU LEELA PRASAD RAO & ORS. v. 95 STATE OF A.P. & ORS. [ARUN MISHRA, J.]

(a) require the State Government to organise any class or A classes of posts in a civil service of, or any class or classes of civil posts under, the State into different local cadres for different parts of the State and allot in accordance with such principles and procedure as may be specified in the order the persons holding such posts to the local cadres so organised; B (b) specify any part or parts of the State which shall be regarded as the local area— (i) for direct recruitment to posts in any local cadre (whether organised in pursuance of an order under this article or constituted otherwise) under the State Government; C (ii) for direct recruitment to posts in any cadre under any local authority within the State; and (iii) for the purposes of admission to any University within the State or to any other educational institution which is subject to the control of the State Government; D (c) specify the extent to which, the manner in which and the conditions subject to which, preference or reservation shall be given or made— (i) in the matter of direct recruitment to posts in any such cadre referred to in sub-clause (b) as may be specified in this behalf in the order; (ii) in the matter of admission to any such University or other educational institution referred to in sub-clause (b) as may be specified in this behalf in the order, to or in favour of candidates who have resided or studied for any period specified in the order in the local area in respect of such cadre, University or other educational institution, as the case may be. (3) x x x G 10) The provisions of this article and of any order made by the President thereunder shall have effect notwithstanding anything in any other provision of this Constitution or in any other law for the time being in force.” H

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A The provisions contained in Article 371D were inserted by the Constitution (Thirty-second Amendment) Act, 1973, w.e.f. 1.7.1974 and has further been amended by the Andhra Pradesh Reorganisation Act, 2014, applicable to the State of Andhra Pradesh or the State of Telangana.

85Copy pinpoint85. The President in exercise of powers under Article 371-D(1) B and (2) promulgated order, namely, Andhra Pradesh Public Employment (Organisation of Local Cadres and Regulation of Direct Recruitment) Order, 1975. Para 3 provided for organisation of local cadres. Recruitment to various categories has to be made to local cadres taking district as a unit or 3 or 4 districts comprising as a zone. The local area has been defined in Para 6(1) thus: C “Local areas: (1) Each district shall be regarded as a local area– (i) For direct recruitment to posts in any local cadre under the State Government comprising all or any of the posts in any department in that district belonging to the category of Junior D Assistants or to any other category equivalent to or lower than that of a Junior Assistant. (ii) For direct recruitment to posts in any cadre under any local authority within that district, carrying a sale of pay the minimum of which does not exceed the minimum of the scale of pay of a E Junior Assistant or a fixed pay not exceeding that amount.” For recruitment to the posts of teachers, a district is a unit. Para 7 defines local candidates. Para 8 provides that 80 per cent of the posts to be filled by direct recruitment. The matter of recruitment to various local cadres is required to be in terms of the provisions of the F Presidential Order issued under Article 371D. The recruitment of teachers is to be made for which district is a unit.

86Copy pinpoint86. In Dr. C. Surekha v. Union of India, AIR 1989 SC 44, this Court held that Article 371D does not militate against the basic structure of the Constitution. Similar is the view taken in Dr. Fazal Ghafoor v. G Union of India, AIR 1989 SC 48.

87Copy pinpoint87. This Court in V. Jagannadha Rao and Ors. v. State of A.P. and Ors., (2001) 10 SCC 401 held that Article 371D(1) of the Constitution unequivocally indicates that the said article and any order made by the President thereunder shall have effect notwithstanding anything in any other provision of the Constitution or any other law for the time being in force. The Court observed:

CHEBROLU LEELA PRASAD RAO & ORS. v. 97 STATE OF A.P. & ORS. [ARUN MISHRA, J.]

“21. In Sadanandam case, 1989 Supp. (1) SCC 574, while considering the legality of amended provisions of the Rules framed by the State Government and in sustaining the same, this Court was of the opinion that as the aforesaid Rules had been framed under Section (3) of the Andhra Pradesh Ordinance 5 of 1983 read with para 5(2)(a) of the Presidential Order, the conclusion of the Tribunal in striking down the rule is erroneous. The Court was of the opinion that mode of recruitment and category from which the recruitment to a service should be made are policy matters exclusively within the purview and domain of the executive and it would not be appropriate for judicial bodies to sit in judgment over the wisdom of the executive in choosing the mode of recruitment or the categories from which the recruitment should be made. In our considered opinion, both the aforesaid reasons do not constitute a true interpretation of the provisions of the Presidential Order. At the outset, it may be noticed that Article 371-D(10) of the Constitution unequivocally indicates that the said article and any order made by the President thereunder shall have effect notwithstanding anything in any other provision of the Constitution or in any other law for the time being in force. Necessarily, therefore, if it is construed and held that the Presidential Order prohibits consideration of the employees from the feeder category from other units then such a rule made by the Governor under the proviso to Article 309 of the Constitution will have to be struck down. Then again in exercise of powers under para 5(2) of the Presidential Order if the State Government makes any provision, which is outside the purview of the authority of the Government under para 5(2) of the Order itself, then the said provision also has to be struck down. Having construed the Rules framed by the Governor under proviso to Article 309 of the Constitution from the aforesaid standpoint, the conclusion is irresistible that the said Rule to the extent indicated by the Tribunal is constitutionally invalid and its conclusion is unassailable. In the case in hand, the impugned provisions do not appear to have been framed in exercise of powers under para 5(2) of the Presidential Order and as such the same being a Rule made under proviso to Article 309 of the Constitution, the Presidential Order would prevail, as provided under Article 371-D(10) of the Constitution. Even if H

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A it is construed to be an order made under para 5(2) of the Presidential Order, then also the same would be invalid being beyond the permissible limits provided under the said paragraph. In this view of the matter, the Tribunal rightly held the provision to the extent it provides for consideration of employees of the Factories and Boilers Units to be invalid, for the purpose of promotion to the higher post in the Labour Unit and as such we see no justification for our interference with the said conclusion of the Tribunal and the earlier judgment of this Court in Sadanandam case, 1989 Supp. (1) SCC 574, must be held to have not been correctly decided. As a consequence, so would be the case with Satyanarayana Rao case, (2000) 4 SCC 262.” (emphasis supplied by us)

88Copy pinpoint88. In S. Prakasha Rao and Anr. v. Commissioner of Commercial Taxes and Ors., (1990) 2 SCC 259, this Court opined that once the President makes an order under Article 371D(1) and (2), the D State Government loses its inherent power to deal with matters relating to services, it may exercise its powers on matters dealt with the Presidential Order only in the manner specified in the order. This Court observed: “19. It is seen that the order was made pursuant to the power given to the President under Article 371-D, which is a special provision made under the Constitution (Thirty-second Amendment) Act, 1973 peculiar to the State of Andhra Pradesh due to historical background. Therefore, the State Government have no inherent power in creating a zone or organising local cadre within the zones except in accordance with the provisions made in the Andhra Pradesh Public Employment (Organisation of Local Cadres and Regulation for Direct Recruitment) Order. It is true that the clause ‘or constituted otherwise’ defined in paragraph 2(e) is of wide import, but is only relatable to the power given by the President to the State Government to organise local cadre. Paragraph 3(1) is the source of that power, but the exercise thereof is hedged with a limitation of twelve months from the date of commencement of the Order. Therefore, the power to organise class or classes of post of civil services of, and class or classes of civil posts, under the State into different local cadres should be exercised by the H State Government in accordance with paragraph 3(1) before the

CHEBROLU LEELA PRASAD RAO & ORS. v. 99 STATE OF A.P. & ORS. [ARUN MISHRA, J.]

expiry of the twelve months from October 20, 1975. If the exercise of the power is not circumscribed within limitation, certainly under General Clauses Act the power could be exercised from time to time in organising local cadres to meet the administrative exigencies. The prescription of limitation is a fetter put on the exercise of power by the State Government. Obviously, realising this reality and the need to organise local cadres, subsequent thereto the amendment was made and was published in GOMs No. 34 G.A. dated January 24, 1981 introducing proviso to paragraph 3(1). Thereunder, notwithstanding the expiry of the said period, the President alone has been given power to organise local cadres in respect of class or classes of posts in civil services and class or classes of civil posts, under the State. That too subject to the conditions precedent laid therein. Thus, it is the President and the President alone who has been given power under proviso by an order to require the State Government to organise the local cadres in relation to any class or classes of posts in the civil services of and class or classes of civil posts under the State into different local cadres. It could be considered in yet another perspective. Paragraph 2(e) indicates that President himself may create a local cadre instead of requiring the State Government to organise local cadre. For instance, paragraph 3(6) empowered the President to create local cadre for the city of Hyderabad. Similarly, E under proviso to paragraph 3(1) the President may require the State Government to create a local cadre within a zone. So the phrase ‘or constituted otherwise’ cannot be understood de hors the scheme of the Presidential Order. No doubt in common parlance, the word ‘otherwise’ is of ‘wide’ amplitude. F This Court in K.K. Kochuni v. States of Madras and Kerala, AIR 1960 SC 1080, Subba Rao, J., as he then was, speaking per majority in paragraph 50 while construing the word ‘otherwise’ held that it must be confined to things analogous to right or contract such as lost grant, immemorial user etc. The word ‘otherwise’ in the context only means whatever may be the origin of the receipt G of maintenance. The ratio thereunder cannot be extended in the contextual circumstances obtainable on the facts in this case. Similarly, in Lilavati Bai v. State of Bombay, AIR 1957 SC 521, Sinha J., as he then was, speaking for the Constitution Bench interpreting Explanation (a) to Section 6 of Bombay Land H

p. 100 Copy page pinpoint

A Requisition Act, 1948, as amended in 1950 and repelling the application of ejusdem generis doctrine laid the law thus: “The legislature has been cautious and thoroughgoing enough to bar all avenues of escape by using the words ‘or otherwise’. Those words are not words of limitation but of extension so as to cover all possible ways in which a vacancy may occur. Generally speaking a tenant’s occupation of his premises ceases when his tenancy is terminated by acts of parties or by operation of law or by eviction by the landlord or by assignment or transfer of the tenant’s interest. But the legislature, when it used the words ‘or otherwise’, apparently intended to cover other cases which may not come within the meaning of the preceding clauses, for example, a case where the tenant’s occupation has ceased as a result of trespass by a third party. The legislature, in our opinion, intended to cover all possible cases of vacancy occurring due to any reasons whatsoever.” D Thus, contextual interpretation to the words ‘or otherwise’ was given by this Court. Therefore, the phrase ‘constituted otherwise’ is to be understood in that context and purpose which Article 371- D and the Presidential Order seek to achieve. If the interpretation given by the appellants is given acceptance it amounts to E giving blanket power to the State Government to create local cadres at its will tending to defeat the object of Article 371-D and the Presidential Order. Accordingly, we have no hesitation to reject the interpretation of wider connotation. The ratio in these decisions does not render any assistance to the appellants.

F 20. Similarly, the power given to the State Government in sub- paragraph (7) of paragraph 3 of the Order is only to organise a separate cadre in respect of any category of posts in any department when more than one cadre in respect of such category exists in each department; so the State Government may organise one cadre when more than one cadre in respect of different G categories of posts exist in a zone under paragraph 3(1) of the Order. It is clear when we see the language in paragraph 3(7) which says that: “nothing in this order shall be deemed to prevent the State from organising”. Take for instance while creating local cadre co-terminus with the administrative control of the Deputy H Commissioner, Commercial Taxes, local cadre for Senior

CHEBROLU LEELA PRASAD RAO & ORS. v. 101 STATE OF A.P. & ORS. [ARUN MISHRA, J.]

Assistants may be created. It is also made manifest by instructions A 7 and 9(e) of the instructions contained in GOMs No. 728 GAD dated November 1, 1975. But, as stated earlier, it is only for the purpose of administrative convenience, not for the purpose of recruitment, seniority or promotion etc., as the case may be. Thus, we have no hesitation to hold that the creation of a division and maintaining separate seniority of Junior Assistants and Senior Assistants for Adilabad and Warangal Divisions are illegal, contrary to order issued in GOMs No. 581 and the Andhra Pradesh Employment (Organisation of Local Cadre and Regulation of Direct Recruitment) Order, 1975. The single member of the Tribunal in R.P. No. 101 of 1982 dated April 1, 1982 did not consider the effect of the order in proper perspective and is illegal.” (emphasis supplied by us) No doubt about it that the provision to have overriding effect shall have any nexus as to the subject matter of other provisions. D

89Copy pinpoint89. The main question to be considered is whether there is any conflict between the Presidential Order and the G.O. Ms. No. 3 of 2000issued under the order of the Governor under Para 5(1) of the Fifth Schedule of the Constitution. Considering the geographical disparity in public employment, Article 371D was inserted in the Constitution, providing candidates from certain districts/zones to form the local cadre for different posts for different parts of the States. The Presidential Order was issued providing district/zone for local cadre, on the other hand, the order issued by the Governor has reserved all the posts of teachers in the Scheduled Areas for Schedule Tribe candidates. The aspiring candidates of the district/zone in the Scheduled Area cannot apply for the post of teachers in the district as 100 per cent reservation was made vide G.O.Ms. No. 3 of 2000 by the Governor. It is also not disputed that aspiring candidates cannot apply outside the district/zone because of the restrictions under Article 371D of the Constitution. As there is 100 per cent reservation provided for the Scheduled Tribes in the Scheduled Areas, other candidates of Scheduled Castes, General G and Other Backward Classes category cannot apply at all in other districts. They are being denied the opportunity of getting the employment as against the posts in question. Thus, the order issued by the Governor is clearly in conflict with the Presidential Order issued under Article 371D. The candidates of local areas or other candidates except for Scheduled H

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A Tribes have been deprived of the opportunity of seeking public employment because of the order issued by the Governor, and they cannot apply outside the local area in view of the Presidential notification. The Presidential notification intends that they have to apply within the district, and the Governor’s notification takes away that right. Thus, there is a clear repugnancy between the notification issued by the President and that subsequent order issued by the Governor in the exercise of powers under Para 5, Fifth Schedule of the Constitution. It is not possible to harmonise both the notifications. Apart from that, there is total deprivation. It is not factually correct that Presidential Order did not deal with Scheduled Areas. The Presidential Order applied to the entire State and carved out a special provision that applies with a non-obstante clause.

90Copy pinpoint90. The Governor is competent to issue an order which is not in conflict with the Presidential Order. The Governor issued the order when the Presidential Order was already in force in the entire State. The Governor could not have issued the order in derogation to the Presidential D Order. In our opinion, 100 per cent reservation could not have been provided as that violates the Presidential Order. In Re: Question No.²: whether 100% reservation is permissible under the Constitution?

91Copy pinpoint91. The Constitution has provided for justice – social, economic E and political; liberty of thought, expression, belief, faith and worship; equality of status and opportunity; and to promote among them all fraternity assuring the dignity of the individual and the unity and integrity of the Nation. The framers of the Constitution have taken great care and deliberation so that it reflects the high purpose and noble objectives. F It aims at the formation of an egalitarian order, free from exploitation, the fundamental equality of humans and to provide support to the weaker sections of the society and wherefrom there is a disparity to make them equal by providing protective discrimination. The Constitution in the historic perspective leans in favour of providing equality and those aims sought to be achieved by the Constitution by giving special protection to the G socially and economically backward classes by providing a protective umbrella for their social emancipation and providing them equal justice, ensuring the right of equality by providing helping hand to them by way of reservation measures. Article 14 guarantees equality before the law or the equal protection of the laws. Be it a matter of distribution of State H largesse; the Government is obligated to follow the constitutionalism.

CHEBROLU LEELA PRASAD RAO & ORS. v. 103 STATE OF A.P. & ORS. [ARUN MISHRA, J.]

State action cannot be arbitrary and discriminatory and cannot be guided by extraneous considerations, which is opposed to equality. The concept of equality is the antithesis of arbitrariness in action. There cannot be any legislation in violation of equality, which violates the basic concept of equality as enshrined in Part III of the Constitution. An administrative order has to be tested on the anvil of non-arbitrariness. Any action of the legislature, administrative or quasi-judicial, is open to challenge if it is in conflict with the Constitution or the Act and applicable general principles of law. The protective discrimination of persons residing in backward areas is permissible, as held in M.P. Oil Extraction & Anr. v. State of M.P. & Ors., (1997) 7 SCC 592. The industrial units were set up in backward areas at the instance of the Government. Special treatment was given to them for the supply of sal seeds at a concessional rate of royalty. It was held in the aforesaid decision that the distinction was reasonable.

92Copy pinpoint92. The concept of equality cannot be pressed to commit another wrong. The concept of equality enshrined in Article 14 of the Constitution D is a positive concept. It is not a concept of negative equality. It cannot be used to perpetuate an illegality. Equity cannot be applied when it arises out of illegality. The doctrine of equity would not be attracted when the benefits were conferred on the basis of illegality, as held in Usha Mehta v. Government of Andhra Pradesh, (2012) 12 SCC 419; John Vallamattom v. Union of India, (2003) 6 SCC 611; General Manager, E Uttranchal Jal Sansthan v. Laxmi Devi, (2009) 7 SCC 205, State of West Bengal v. Debashish Mukherjee, AIR 2011 SC 3667.

93Copy pinpoint93. Article 14 is to be understood in the light of the Directive Principles, as observed in Indra Sawhney (supra). The classification made cannot be unreasonable. It can be based on a reasonable basis. It F cannot be arbitrary but must be rational. It should be based on intelligible differentia and must have rational nexus to the object sought to be achieved. There are various fields in which Article 14 has extended its reach and ambit. The provision is very deep and pervasive. It kills the evil of discrimination to bring equality. G

94Copy pinpoint94. Article 15 of the Constitution prohibits discrimination based on religion, race, caste, sex, or place of birth. Article 15(4) provides that the State can make any special provision for the advancement of socially and economically backward classes or scheduled castes and scheduled tribes. Similarly, Article 15(5) enables the State to make special provisions H

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A for educationally backward classes, Scheduled Castes, and Scheduled Tribes for admission to educational institutions, including private educational institutions, whether aided or unaided by the State. Article 15(6) enables the State Government to make any special provision for the advancement of economically weaker sections of citizens other than the classes mentioned in Article 15(4) and 15(5). The State can also make a provision under Article 15(6)(b) for the advancement of economically weaker sections of the citizens relating to their admission to educational institutions, including private educational institutions, whether aided or unaided except for the minority educational institutions. The State has the power to notify economically weaker sections from time to time based on family income and other indicators of economic disadvantage.

95Copy pinpoint95. Article 16 deals with equality of opportunity in matters of public employment, which ensures equality of opportunity for all citizens in matters relating to employment or appointment to any office under the D State. Article 16(2) provides that no citizen shall be discriminated on the grounds of religion, race, caste, sex, descent, place of birth, residences or any of them and be ineligible for, or discriminated against in respect of any employment or office under the State. Article 16(3) enables the Parliament to make law regarding a class or classes of employment or appointment to an office providing for any requirement as to residence E within that State or Union Territory before such employment or appointment. Under Article 16(4), State can provide reservation in appointments or posts in favour of any backward class of citizens which, in its opinion, is not adequately represented in services under State. Directive Principles of State Policy enjoin a duty upon the State to secure F a social order for the promotion and welfare of the people, to promote justice – social, economic, and political; and all institutions of the national life have to endeavour furtherance of the above-avowed purposes. The State has to strive to minimise inequalities of income, eliminate the status of opportunities not only amongst individuals but also groups of people engaged in different areas, and engaged in different professions. Article G 39(b) and (c) aim at the distribution of State largesse and control of the material resources of the community as best to sub-serve the common good, and that the operation of the economic system does not result in the concentration of wealth and means of production to the collective detriment. Article 47 of the Constitution deals with the duty of the State H to raise the level of nutrition and the standard of living and to improve

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public health. Article 51A (a) to (k) contains the fundamental duties, and every citizen of India must promote harmony and the spirit of common brotherhood amongst all the people of India transcending religious, linguistic and regional or sectional diversities; to renounce practices derogatory to the dignity of women. Article 51A(j) confers a duty to strive towards in all spheres of individual and collective activity so that the nation steadily rises to higher levels of endeavours and achievement. Article 51A has been used as an interpretative tool where the constitutionality of an Act is challenged. The Court considered the duties in Mohan Kumar Singhania &Ors. v. Union of India & Ors., 1992 Supp. (1) SCC 594 thus: “41. In this regard, it will be worthwhile to refer to Article 51-A C in Part IV-A under the caption ‘Fundamental Duties’ added by the Constitution (Forty-second Amendment) Act, 1976, in accordance with the recommendations of the Swaran Singh Committee. The said article contains a mandate of the Constitution that it shall be the duty of every citizen of India to do the various D things specified in clauses (a) to (j) of which clause (j) commands that it is the duty of every citizen of India to strive towards excellence in all spheres of individual and collective activity so that the nation constantly rises to higher levels of endeavour and achievement. E

42. In our view, the effort taken by the government in giving utmost importance to the training programme of the selectees so that this higher civil service being the topmost service of the country is not wasted and does not become fruitless during the training period is in consonance with the provisions of Article 51-A(j).” F

96Copy pinpoint96. The Constitution of India contains special provisions for scheduled castes and scheduled tribes in Part XVI. Article 330 provides for reservation of seats for scheduled castes and scheduled tribes in the House of the People. Article 332 provides for “reservation of seats” for scheduled castes and scheduled tribes in the legislative assemblies of the States. Article 334 provides for “reservation of seats” and special G representation to “cease after a certain period.” The provision was made initially for a lesser period. After that, it was extended for 20 years, 30 years, 40 years, 50 years, 60 years, and now enhanced to 70 years by amendment made in 2019. Article 335 provides that claims of the members of the scheduled castes and the scheduled tribes, for maintenance of H

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A efficiency of administration, in the making of appointments to services and posts in connection with the affairs of the Union or a State; and State can relax criteria in qualifying marks in any examination or lower standards of evaluation, for reservation in matters of promotion to any class or classes of services or posts in connection with the affairs of the Union or a State. B

97Copy pinpoint97. Article 338 provides for constitution of National Commission for Scheduled Castes to investigate and monitor all matters relating to the safeguards provided for the scheduled castes and to evaluate the working of such safeguards; to inquire into specific complaints concerning the deprivation of rights and safeguards of the scheduled castes; to C participate and advise on the planning process of socio-economic development of the scheduled castes and to evaluate the progress of their development under the Union and any State; to present to the President, annually and at such other times as the Commission may deem fit, reports upon the working of those safeguards are provided in D Article 338(5)(d). Article 338(6) requires that the President shall cause all such reports to be laid before each House of Parliament and a memorandum explaining action taken or proposed to be taken on recommendations relating to the Union and the reasons for non- acceptance, if any, of any of such recommendations. A copy of the report has to be forwarded to the Governor to be dealt with in terms of E Article 338(7). The Commission has the power of inquiring into any complaint as specified in Article 338(8), and Article 338A provides for the constitution of a National Commission for Scheduled Tribes. Similar provisions are contained for National Commission for Scheduled Tribes in Article 338A. Article 339 envisages control of the Union over the administration of scheduled areas and the welfare of the scheduled tribes. Article 340 deals with the appointment of a Commission to investigate the conditions of backward classes.

98Copy pinpoint98. Under Article 341 the President concerning any State or Union territory, may specify the castes, races or tribes or parts of or groups within castes, races or tribes which shall for the Constitution, be deemed to be scheduled castes in relation to that State or Union territory, as the case may be. Article 341(2) confers power on the Parliament to include in or exclude from the list of scheduled castes specified in a notification issued under Article 342(1) any caste, race or tribe or part of or group within any caste, race or tribe, and any subsequent notification shall not H

CHEBROLU LEELA PRASAD RAO & ORS. v. 107 STATE OF A.P. & ORS. [ARUN MISHRA, J.]

vary the same. Power can be exercised only once. Article 342 contains A a provision in respect of scheduled tribes. The President may, by notification specify the tribe or tribal communities or parts of or groups within tribes or tribal communities which shall for the Constitution, be deemed to be scheduled tribes in relation to that State or the Union territory, as the case may be. The Parliament may include in or exclude B from the list of scheduled tribes, any tribe or tribal community or part of or group within any tribe or tribal community, but save as aforesaid, any subsequent notification shall not vary a notification issued under the said clause. Thus, the power to vary can be exercised only once. A similar provision has been added in Article 342A concerning socially and educationally backward classes. C

99Copy pinpoint99. Article 243T deals with reservation of seats for scheduled castes and scheduled tribes in every municipality in proportion to the population of the scheduled castes or scheduled tribes in the municipal area to the total population of that area and provides for rotation of seats. Article 243D provides for reservation of seats for scheduled castes and scheduled tribes in every Panchayat, and Panchayat is constituted in every State, Panchayat at the village, intermediate and district levels as provided in Article 243B. It is mandatory to constitute such Panchayat at the district level in a State having a population exceeding 20 lakhs.

100Copy pinpoint100. Article 244, with which we are concerned in the present matter, provides for the administration of scheduled areas and tribal areas. The Constitution is spatially it provides Scheduled Areas under Article 244, Schedule V, Schedule VI, and special provisions have been made concerning various States under Articles 370, 371A to 371J. For better administration, the Constitution has divided India into States and Union Territories as per Articles 3 and 4. F

101Copy pinpoint101. Concerning classification in a constitutional dispensation for scheduled castes and scheduled tribes, Dr. Ambedkar’s speech in the Constituent Assembly Debates, page 979, 11th at pages 979-80 is referred to by Dr. Dhawan. Same is extracted hereunder: G “We must begin by acknowledging the fact that there is a complete absence of two things in Indian Society. One of these is equality. On the social plane, we have in India a society based on the principle of graded inequality, which means elevation for some and degradation for others. On the economic plane, we have a society in which there are some who have immense wealth as H

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A against many who live in abject poverty. On the 26th of January, we are going to enter into a life of contradictions. In politics, we will have equality and in social and economic life we will have inequality. In politics we will be recognizing the principle of one man one vote one value. In our social and economic life we shall, by reason of our social and economic structure, continue to defy the principle of one man one vote one value. How long shall we continue to live this life of contradictions? How long shall we continue to deny equality in our social and economic life? If we continue to deny it for long, we shall do so by putting out political democracy in peril. We must remove this contradiction at the earliest possible moment or else those suffer from inequality will blow up the structure of political democracy which this Assembly has so laboriously built up. The second thing we are wanting in is recognition of the principle of fraternity. What does fraternity mean? Fraternity D means a sense of common brotherhood of all Indians - if Indians think of themselves as being one people. It is the principle which gives unity and solidarity to social life… The sooner we realize that we are not as yet a nation and seriously think of ways and means of realizing this goal, the better for us….. For fraternity can be a fact, only where there is a nation. Without fraternity, equality and liberty will be no deeper than a coat of paint.”

102Copy pinpoint102. The scheduled castes and scheduled tribes have been provided with special measures to make them equal to the others. Efforts have been made to protect their land and property by enacting various laws. Special provisions have also been carved out to preserve their human dignity with respect, in the shape of trusts in Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. The scheduled castes and scheduled tribes were making a struggle for freedom and various rights in the country. They suffered discrimination; fruits of development have not percolated down to them. They remained an unequal and vulnerable section of the society and treated for centuries as outcasts socially. That is the basis for providing them reservation and special treatment to provide them upliftment and to eradicate their sufferings. We have not been able to eradicate untouchability in the real sense so far and to provide safety and security to downtrodden class and to ensure that their rights are preserved and protected, and they equally enjoy frugal comforts of life.

CHEBROLU LEELA PRASAD RAO & ORS. v. 109 STATE OF A.P. & ORS. [ARUN MISHRA, J.]

103Copy pinpoint103. Concerning tribals, we see that there are several schemes for their upliftment, but we still see that at certain places, they are still kept in isolation and are not even able to get basic amenities, education, and frugal comforts of life. These classes have an equal right to life vailable to all human beings. Considering the social backwardness, which includes economic aspects also, these are the classes that have suffered historic disabilities arising from discrimination, poverty, educational backwardness to provide them empowerment and to make them part of the mainstream. Special provisions have been carved out in the Constitution. Article 16(4) is not an exception to Article 16(1) being part of equality. The reservation can be rectified. Section 16(4) aims at group backwardness. Reservations are provided due to discrimination and disadvantages suffered by the backward classes, scheduled castes and scheduled tribes for sharing the State power.

104Copy pinpoint104. The concept of sharing State power was considered in Indra Sawhney (supra). Sawant, J., in his opinion, dealt with the idea of sharing of State power thus: D “483. That only economic backwardness was not in the contemplation of the Constitution is made further clear by the fact that at the time of the First Amendment to the Constitution which added clause (4) to Article 15 of the Constitution, one of the Members, Prof. K.T. Shah wanted the elimination of the word E “classes” in and the addition of the word “economically” to the qualifiers of the term “backward classes”. This Amendment was not accepted. Prime Minister Nehru himself stated that the addition of the word “economically” would put the language of the article at variance with that of Article 340. He added that “socially” is a much wider term including many things and certainly F including “economically”. This shows that economic consideration alone as the basis of backwardness was not only not intended but positively discarded.” (emphasis supplied) G Justice Jeevan Reddy dealt with the same, thus: “694. The above material makes it amply clear that the objective behind clause (4) of Article 16 was the sharing of State power. The State power which was almost exclusively monopolised by the upper castes i.e., a few communities, was now sought to be H

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A made broad-based. The backward communities who were till then kept out of apparatus of power, were sought to be inducted thereinto and since that was not practicable in the normal course, a special provision was made to effectuate the said objective. In short, the objective behind Article 16(4) is empowerment of the deprived backward communities — to give them a share in the administrative apparatus and in the governance of the community.

750. Dr Rajeev Dhavan, learned counsel appearing for Srinarayana Dharma Paripalana Yogam (an association of Ezhavas in Kerala) submitted that Articles 16(4) and 15(4) occupy different fields and serve different purposes. Whereas Article 15(4) contemplates positive action programmes, Article 16(4) enables the State to undertake schemes of positive discrimination. For this reason, the class of intended beneficiaries under both the clauses is different. The social and educational backwardness which is the basis of identifying backwardness under Article 15(4) is only partly true in the case of ‘backward class of citizens’ in Article 16(4). The expression “any backward class of citizens” occurring in Article 16(4) must be understood in the light of the purpose of the said clause namely, empowerment of those groups and classes which have been kept out of the administration — E classes which have suffered historic disabilities arising from discrimination or disadvantage or both and who must now be provided entry into the administrative apparatus. In the light of the fact that the Scheduled Castes and Scheduled Tribes were also intended to be beneficiaries of Article 16(4) there is no reason F why caste cannot be an exclusive criterion for determining beneficiaries under Article 16(4). Counsel emphasised the fact that Article 16(4) speaks of group protection and not individual protection.

788. Further, if one keeps in mind the context in which Article G 16(4) was enacted it would be clear that the accent was upon social backwardness. It goes without saying that in the Indian context, social backwardness leads to educational backwardness and both of them together lead to poverty — which in turn breeds and perpetuates the social and educational backwardness. They feed upon each other constituting a vicious circle. It is a well- H

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known fact that till independence the administrative apparatus was manned almost exclusively by members of the ‘upper’ castes. The Shudras, the Scheduled Castes and the Scheduled Tribes and other similar backward social groups among Muslims and Christians had practically no entry into the administrative apparatus. It was this imbalance which was sought to be redressed by providing for reservations in favour of such backward classes. In this sense Dr Rajeev Dhavan may be right when he says that the object of Article 16(4) was “empowerment” of the backward classes. The idea was to enable them to share the state power. We are, accordingly, of the opinion that the backwardness contemplated by Article 16(4) is mainly social backwardness. It C would not be correct to say that the backwardness under Article 16(4) should be both social and educational. The Scheduled Tribes and the Scheduled Castes are without a doubt backward for the purposes of the clause; no one has suggested that they should satisfy the test of social and educational backwardness. It is D necessary to state at this stage that the Mandal Commission appointed under Article 340 was concerned only with the socially and educationally backward classes contemplated by the said article. Even so, it is evident that social backwardness has been given precedence over others by the Mandal Commission — 12 out of 22 total points. Social backwardness — it may be reiterated E — leads to educational and economic backwardness. No objection can be, nor is taken, to the validity and relevancy of the criteria adopted by the Mandal Commission. For a proper appreciation of the criteria adopted by the Mandal Commission and the difficulties in the way of evolving the criteria of backwardness, one must read closely Chapters III and XI of Volume I along with Appendixes XII and XXI in Volume II. Appendix XII is the Report of the Research Planning Team of the Sociologists while Appendix XXI is the ‘Final List of Tables’ adopted in the course of socio- educational survey. In particular, one may read paras 11.18 to 11.22 in Chapter XI, which are quoted hereunder for ready reference: “11.18. Technical Committee constituted a Sub-Committee of Experts (Appendix-20, Volume II) to help the Commission prepare ‘Indicators of Backwardness’ for analysing data contained in computerised tables. After a series of meetings and a lot of H