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

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A Other incumbents who are in the reserved classes such as scheduled castes and other backward classes and even Scheduled Tribes who have settled after 26.1.1950 beside incumbents of open category, were deprived of the right to stake claim to obtain public employment as against the posts in question. In the background of the discussion made in the earlier part of the judgment, it is crystal clear that the order passed providing B 100% reservation is arbitrary, illegal, impermissible, and unconstitutional.

140Copy pinpoint140. The 100 percent reservation has been provided. It cannot be said to be a case of classification that has been made under Article 16(1). Assuming, for the sake of argument, it is to be a case of classification under Article 16(1), it would have been discriminatory and grossly arbitrary without rationale and violative of constitutional mandate.

141Copy pinpoint141. The incumbents of various categories have the right to stake a claim for the employment of which they have been deprived. Thus, it is not a matter of classification. The reservation under Article 16(4) was made. By way of 100% reservation, the employment to others was illegally deprived and they have no chance of employment as against the post of teachers elsewhere because of the order under Article 371D in which district/zone is a unit. It is a clear case of tinkering with reservation. In Re: Question No.4: Whether the conditions of eligibility that is the origin and cut-off date to avail the benefit of reservation in the notification is reasonable:

142Copy pinpoint142. It has been provided in the notification that the local scheduled tribe’s candidates have been defined to be scheduled tribes notified as under Article 342 of the Constitution of India, if the candidates of scheduled tribes themselves or their parents have been continuously residing in the scheduled areas of the district in which they are residing from the date i.e., 26th January 1950.

143Copy pinpoint143. The condition of continuously residing in the district is ex facie arbitrary.Article 15(1) of the Constitution provides that State shall not discriminate inter alia on the ground of place of birth, however, under Article 15(4), it is provided that reservation can be made in favour of citizens of backward classes i.e.Scheduled Castes and Scheduled Tribes and special provision can be carved out for their advancement. It is also open to prescribe for conditions of eligibility on the ground of residence in a particular area as well as on the educational requirements but that cannot be fixed arbitrarily and irrationally. H

CHEBROLU LEELA PRASAD RAO & ORS. v. 155 STATE OF A.P. & ORS. [ARUN MISHRA, J.]

144Copy pinpoint144. In the Presidential Order called the Andhra Pradesh Public A Employment (Organisation of Local Cadres and Regulation of Direct Recruitment) Order, 1975, (for short, “1975 Order”) “Local Candidate” has been defined in para 7 thus: “7. Local Candidate:- (1) A candidate for direct recruitment to any post shall be regarded as a local candidate in relation to a B local area. (a) in cases where a minimum educational qualification has been prescribed for recruitment to the post. (i) if he has studied in an educational institution or educational institutions in such local area for a period of not less than four consecutive academic years ending with the academic year in which he appeared or, as the case may be, first appeared for the relevant qualifying examination; or (ii) where during the whole or any part of the four consecutive academic years ending with the academic year in which he appeared or as the case may be, first appeared for the relevant qualifying examination he has not studied in any educational institution, if he has resided in that local area for a period of not less than four years immediately preceding the date of commencement of the qualifying examination in which he appeared or as the case may be, first appeared. (b) In cases where no minimum educational qualification has been prescribed for recruitment to the post, if he has resided in that local area for a period of not less than four years immediately preceding the date on which the post is notified for recruitment. *** *** *** *** *** *** (2) A candidate for direct recruitment to any post who is not regarded as a local candidate under sub paragraph (1) in relation to any local area shall. (a) in cases where a minimum educational qualification has been prescribed for recruitment to the post. H

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A (i) if he has studied in educational institutions in the State for a period of not less than seven consecutive academic years ending with academic year in which he appeared or as the case may be, first appeared for the relevant qualifying examination, be regarded as a local candidate in relation to B (1) Such local area where he has studied for the maximum period out of the said period of seven years; or (2) where the periods of his study in two or more local areas are equal, such local areas where he has studied last in such equal periods; C (ii) if during the whole or any part of the seven consecutive academic years ending with the academic years in which he appeared or as the case may be first appeared for the relevant qualifying examination, he has not studied in the educational institutions in any local area, but has resided in the State during D the whole of the said period of seven years, be regarded as a local candidate in relation to (1) such local area where he has resided for a maximum period out of the said period of seven years: or

E (2) where the periods of his residence in two or more local areas are equal, such local areas where he has resided last in such equal periods; (b) In cases where no minimum educational qualification has been prescribed for recruitment to the post, if he has resided in F the State for a period of not less than seven years immediately preceding the date on which the post is notified for recruitment, be regarded as a local candidate in relation to (i) such local area where he has resided for the maximum period out of the said period of seven years; or G (ii) where the periods of his residence in two or more local areas are equal such local area where he has resided last in such equal periods.”

145Copy pinpoint145. Para 7(1) of the 1975 Order provided that a candidate shall be regarded as a local candidate in relation to local area in cases where H

CHEBROLU LEELA PRASAD RAO & ORS. v. 157 STATE OF A.P. & ORS. [ARUN MISHRA, J.]

a minimum qualification is prescribed for recruitment to the post i.e. a A person who hasstudied in such local area for a period of not less than four consecutive academic years orif he has resided in that local area for a period of not less than four years immediately preceding the date of commencement of qualifying examination in which he appeared.

146Copy pinpoint146. Para 7(2) of the 1975 Order provides that candidate for direct recruitment to any post,who is not regarded as a local candidate in relation to any local area, shall study for 7 consecutive academic years where a minimum educational qualification has been prescribed for recruitment to the post. Condition of Study for less than 7 consecutive academic years is also provided for a resident for a period of seven years with certain stipulation in para 7(2)(A)(2)(ii).

147Copy pinpoint147. The G.O. in question requires candidate or the parents to reside in the area continuously w.e.f. 26.1.1950 to date. There is no rhyme or reason to require continuous residence for last 50 years or more. It overlooks the rights of various other persons who might have settled decades together in the area in question. It is discriminatory vis- à-vis to the scheduled tribes also settled in the area and it has no purpose to be achieved and imposes restriction which was not even provided in the Presidential Order issued under Article 371D of the Constitutionof India with respect to residential or educational requirements. Thus, it does not lay down valid conditions. The same is fixed in highly unreasonable and arbitrary manner and limits zone of consideration to miniscule where an opportunity for public employment has to be afforded to all concerned with reasonable rights.

148Copy pinpoint148. Public employment envisages opportunity to all, who have been provided reservation is by way of exception to do the compensatory jobs. The condition above deprives the scheduled tribes who are permanent residents of the areas and have settled after the said cut-off date. Thus, the classification created is illegal, unreasonable, and arbitrary. Making such a provision that a person should be a resident on or before 26th January 1950 to date is discriminatory and has the effect of exceeding the purpose of providing the reservation. It defeats the rights of other similar tribes who might have settled after 26th January 1950 in the area taken care of in the Presidential Order under Article 371-D. It is violative of Articles 14, 15(1) and 16 of the Constitution and has no rationale with the purpose sought to be achieved. It creates a class within a class, and H

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A the classification made failed to qualify the parameters of Articles 14, 15 and 16 of the Constitution of India. REVISION OF LISTS

149Copy pinpoint149. Article 341(1) provides for the inclusion of castes, races, or tribes to be Scheduled Castes in relation to any State. Article 341(2) B empowers the Parliament to include or exclude from the list of Scheduled Castes any caste, race or tribe. Article 341(2) is extracted hereunder: “341.— (1)** (2) Parliament may by law include in or exclude from the list of C Scheduled Castes specified in a notification issued under clause (1) any caste, race or tribe or part of or group within any caste, race or tribe, but save as aforesaid a notification issued under the said clause shall not be varied by any subsequent notification.”

150Copy pinpoint150. Identical provisions in relation to the inclusion of Scheduled D Tribes are provided in Article 342(1), and the Parliament’s power to amend is provided in Article 342(2). Similar provisions are contained with respect to socially and educationally backward classes in Article 342A. Scheduled Area is defined in Para 6 of Schedule V, and the power to amend is provided in Para 7 of Schedule V. It is also provided in Para 3 of the Schedule V that the Governor has to send a report to the President E regarding the administration of Scheduled Areas. The objective is to keep track of the progress in the areas. The report is essential for deciding to make reservations and for its review. Oversightis required to be kept by the Constitutional authorities, and the Parliament has been given the right to amend the list and the Schedule.

151Copy pinpoint151. In Indra Sawhney (supra), it was held that the State Lists adopted to provide reservations by the Government are not meant to be sacrosanct and unalterable. There may be cases where Commissions appointed by the State may have, in their reports, recommended modification of such lists by deletion or addition of certain castes, communities, and classes. Where such reports are available, the State G Government is bound to act on that basis with reasonable promptitude. If the State Government effects any modification or alteration by way of deletions or additions, the same shall be intimated to the Government of India forthwith. This Court opined concerning the modifications and rectification of such list thus: H

CHEBROLU LEELA PRASAD RAO & ORS. v. 159 STATE OF A.P. & ORS. [ARUN MISHRA, J.]

“853. At the same time, we think it necessary to make the following clarification: It is true that the Government of India has adopted the State lists obtaining as on August 13, 1990 for its own purposes but that does not mean that those lists are meant to be sacrosanct and unalterable. There may be cases where commissions appointed by the State Government may have, in their reports, recommended modification of such lists by deletion or addition of certain castes, communities and classes. Wherever such commission reports are available, the State Government is bound to look into them and take action on that basis with reasonable promptitude. If the State Government effects any modification or alteration by way of deletions or additions, the same shall be intimated to the Government of India forthwith which shall take appropriate action on that basis and make necessary changes in its own list relating to that State. Further, it shall be equally open to, indeed the duty of, the Government of India — since it has adopted the existing States lists — to look into the reports of such commission, if any, and pass its own orders, independent of any action by the State Government, thereon with reasonable promptitude by way of modification or alternation. It shall be open to the Government of India to make such modification/alteration in the lists adopted by way of additions or deletions, as it thinks appropriate on the basis of the Reports of the Commission(s). E This direction, in our opinion, safeguards against perpetuation of any errors in the State lists and ensures rectification of those lists with reasonable promptitude on the basis of the Reports of the Commissions already submitted, if any. This course may be adopted de hors the reference to or advice of the permanent mechanism F (by way of Commission) which we have directed to be created at both Central and State level and with respect to which we have made appropriate directions elsewhere.”

152Copy pinpoint152. The Court in Rakesh Kumar (supra) emphasised need of periodical review and held: G “37. It is a well-accepted premise in our legal system that ideas such as “substantive equality” and “distributive justice” are at the heart of our understanding of the guarantee of “equal protection before the law”. The State can treat unequals differently with the objective of creating a level-playing field in the social, economic H

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A and political spheres. The question is whether “reasonable classification” has been made on the basis of intelligible differentia and whether the same criteria bears a direct nexus with a legitimate governmental objective. When examining the validity of affirmative action measures, the enquiry should be governed by the standard of proportionality rather than the standard of “strict scrutiny”. Of B course, these affirmative action measures should be periodically reviewed and various measures modified or adapted from time to time in keeping with the changing social and economic conditions. Reservation of seats in panchayats is one such affirmative action measure enabled by Part IX of the Constitution.” C (emphasis supplied by us)

153Copy pinpoint153. Now there is a cry within the reserved classes. By now, there are affluents and socially and economically advanced classes within Scheduled Castes and Scheduled Tribes. There is voice by deprived persons of social upliftment of some of the Scheduled Castes/Tribes, but they still do not permit benefits to trickle down to the needy. Thus, there is a struggle within, as to worthiness for entitlement within reserved classes of scheduled castes and scheduled tribes and other backward classes. In our opinion, it was rightly urged by Dr. Rajeev Dhawan that the Government is required to revise the lists. It can be done presently without disturbing the percentage of reservation so that benefits trickle down to the needy and are not usurped by those classes who have come up after obtaining the benefits for the last 70 years or after their inclusion in the list. The Government is duty-bound to undertake such an exercise as observed in Indra Sawhney (supra) and as constitutionally envisaged. F The Government to take appropriate steps in this regard.

154Copy pinpoint154. We answer the questions referred to us thus: Question No.1:The Governor in the exercise of powers under Para 5(1), Fifth Schedule of the Constitution, can exercise the powers concerning any particular Act of the Parliament or the legislature of the G State. The Governor can direct that such law shall not apply to the Scheduled Areas or any part thereof. The Governor is empowered to apply such law to the Scheduled Area or any part thereof in the State subject to such exceptions and modifications as he may specify in the notification and can also issue a notification with retrospective effect. H

CHEBROLU LEELA PRASAD RAO & ORS. v. 161 STATE OF A.P. & ORS. [ARUN MISHRA, J.]

Question No.1(a):The Governor is empowered under Para 5(1), A Fifth Schedule of the Constitution, to direct that any particular Act of Parliament or the Legislature of the State, shall not apply to a Scheduled Area or apply the same with exceptions and modifications. The Governor can make a provision within the parameters of amendment/modificationof the Act of Parliament or State legislature. The power to make new laws/regulations, is provided in Para 5(2), Fifth Schedule of the Constitution for the purpose mentioned therein, not under Para 5(1) of the Fifth Schedule to the Constitution of India. Question No.1(b): The power of the Governor under Para 5(1), Fifth Schedule to the Constitution does not extend to subordinate legislation, it is with respect to an Act enacted in the sovereign function by the Parliament or legislature of the State which can be dealt with. Question No.1(c):The Governor’spower under Para 5(1) of the Fifth Schedule to the Constitution is subject to some restrictions, which have to be observed by the Parliament or the legislature of the State while making law and cannot override the fundamental rights guaranteed under Part III of the Constitution. Question No.1(d):In exercise of power under Para 5(1) of the Fifth Schedule to the Constitution of India, the Governor cannot override the notification issued by the President in the exercise of powers under Article 371D. The power has to be exercised harmoniously with such an order issued under Article 371D, not in conflict thereof. Question No.2: G.O.Ms. No.3/2000 providing for 100 per cent reservation is not permissible under the Constitution, the outer limit is 50 per cent as specified in Indra Sawhney (supra). Question No.3:The notification in question cannot be treated as classification made under Article 16(1). Once the reservation has been provided to Scheduled Tribes under Article 16(4), no such power can be exercised under Article 16(1). The notification is violative of Articles 14 and 16(4) of the Constitution of India. Question No.4: The conditions of eligibility in the notification with a cut-off date, i.e., 26.1.1950, to avail the benefits of reservation, is unreasonable and arbitrary one. RELIEF: As a sequel to the quashing of G.O. Ms. No.3 of 2000, the appointments made in excess of the permissible reservation cannot H

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A survive and should be set aside. However, on behalf of State and other respondents, it was urged that appointments may not be set aside. In the peculiar circumstances, the incumbents, who have been appointed, cannot be said to be at fault and they belong to Scheduled Tribes. We cannot ignore the fact that a similar G.O. was issued by the B erstwhile State Government of Andhra Pradesh in the year 1986, which was quashed by the State Administrative Tribunal, against which an appeal was preferred in this Court, which was dismissed as withdrawn in the year 1998. After withdrawal of the appeal from this Court, it was expected of the erstwhile State of Andhra Pradesh not to resort to such illegality of providing 100% reservation once again. But instead, it issued G.O. C Ms. No.3 of 2000, which was equally impermissible, even if the A.P. Regulation of Reservation and Appointment to Public Services Act, 1997 would have been amended, in that event also providing reservation beyond 50% was not permissible. It is rightly apprehended by appellants that the State may again by way of mis-adventure, resort to similar illegal exercise as was done earlier. It was least expected from the functionary like Government to act in aforesaid manner as they were bound by the dictum laid down by this Court in Indra Sawhney (supra) and other decisions holding that the limit of reservation not to exceed 50%. There was no rhyme or reason with the State Government to resort to 100% reservation. It is unfortunate that illegal exercise done in 1986 was sought to be protected by yet another unconstitutional attempt by issuing G.O.Ms. No.3 of 2000 with retrospective effect of 1986, and now after that 20 years have passed. In the peculiar circumstance, we save the appointments conditionally that the reorganised States i.e. the States of Andhra Pradesh and Telangana not to attempt a similar exercise in the future. If they do so and exceed the limit of reservation, there shall not be any saving of the appointments made, w.e.f. 1986 till date. We direct the respondents-States not to exceed the limits of reservation in future. Ordered accordingly. Resultantly, we allow the appeals, and save the appointments made so far conditionally with the aforesaid riders. The cost of appeal is quantified at Rupees Five Lakhs and to be shared equally by the States of Andhra Pradesh and Telangana.

Ankit Gyan Appeals allowed. H