SATYAJIT KUMAR & ORS. v. THE STATE OF JHARKHAND & ORS.

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A concerned districts, for a period of 10 years from the date of issue of this notification.” By order in the name of the Governor of Jharkhand Sd/- Nidhi Khare B Principal Secretary to the Government 16.1. Thus, by the aforesaid impugned Order / Notification the Governor of Jharkhand has directed that the provisions regarding “eligibility of the appointment” mentioned in the various Appointment C Rules, and as framed by the State Government under Article 309 of the Constitution of India for the appointment to the District Cadre posts, shall be deemed to the modified and enforced up to the extent that cent- percent Class-III and Class-IV posts in various department in the 13 Scheduled districts shall be reserved for the local residents of the concerned districts only. At this stage, it is required to be noted that by the said Notification only the service Rules framed under Article 309 of the Constitution of India came to be modified and even the list attached to the notification does not contain any Act of the Parliament or of the State Legislature. By the impugned judgment and order, the High Court, following and relying upon the decision of the Constitutional Bench of this Court in the case of Chebrolu Leela Prasad Rao (supra) has declared the aforesaid Order / Notification dated 14.07.2016 as unconstitutional and consequently has quashed appointments of the trained graduate teachers made pursuant to the Advertisement No. 21/2016 published on 28th December, 2016 as modified by Advertisement dated F 4.2.2017, in the Scheduled Districts relating to the local resident of those Districts only. That thereafter, the High Court has directed that all the 8423 posts of Trained Graduate Teacher in the Government Secondary Schools in the scheduled districts of the State of Jharkhand shall be advertised afresh and a fresh selection process be undertaken in accordance with law. The impugned judgment and order passed by the G High Court and the aforesaid directions is the subject matter of the present appeals.

17Copy pinpoint17. Having heard the learned counsel for the respective parties and considering the impugned common judgment and order passed by the High Court, the questions which are posed for consideration of this H Court are as under:

SATYAJIT KUMAR & ORS. v. THE STATE OF JHARKHAND & 917 ORS. [M. R. SHAH, J.]

I. Whether in exercise of powers conferred under paragraph A 5(1) of the Fifth Schedule to the Constitution of India, whether, the Governor can provide for 100% reservation contrary to Part III of the Constitution of India, more particularly, guaranteed under Article 16(1) and (2) ? II. Whether in exercise of powers under paragraph 5(1) of B the Fifth Schedule to the Constitution of India the Governor has the power to modify the relevant Recruitment Rules framed under Article 309 of the Constitution of India ? III. What order ? 17.1. While considering the aforesaid questions / issues the relevant C Constitutional provisions which would have a direct bearing are required to be referred to, which are as under: - “Article 13. Laws inconsistent with or in derogation of the fundamental rights- (1) All laws in force in the territory of India immediately before the commencement of this D Constitution, in so far as they are inconsistent with the provisions of this Part, shall, to the extent of such inconsistency, be void. (2) The State shall not make any law which takes away or abridges the rights conferred by this Part and any law made in contravention of this clause shall, to the extent of the contravention, be void. (3) In this article, unless the context otherwise requires,— (a) “law” includes any Ordinance, order, bye-law, rule, regulation, notification, custom or usage having in the territory of India the force of law; (b) “laws in force” includes laws passed or made by a Legislature or other competent authority in the territory of India before the commencement of this Constitution and not previously repealed, notwithstanding that any such law or any part thereof may not be then in operation either at all or in particular areas. (4) Nothing in this article shall apply to any amendment of this Constitution made under article 368. xxx xxx xxx H

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A Article 16. Equality of opportunity in matters of public employment - (1) There shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State. (2) No citizen shall, on grounds only of religion, race, caste, sex, descent, place of birth, residence or any of them, be ineligible for, or discriminated against in respect of, any employment or office under the State. (3) Nothing in this article shall prevent Parliament from making any law prescribing, in regard to a class or classes of employment or appointment to an office 1[under the Government of, or any local or other authority within, a State or Union territory, any requirement as to residence within that State or Union territory] prior to such employment or appointment. D (4) Nothing in this article shall prevent the State from making any provision for the reservation of appointments or posts in favour of any backward class of citizens which, in the opinion of the State, is not adequately represented in the services under the State. E (4A) Nothing in this article shall prevent the State from making any provision for reservation 3[in matters of promotion, with consequential seniority, to any class] or classes of posts in the services under the State in favour of the Scheduled Castes and the Scheduled Tribes which, in the opinion of the State, F are not adequately represented in the services under the State. (4B) Nothing in this article shall prevent the State from considering any unfilled vacancies of a year which are reserved for being filled up in that year in accordance with any provision for reservation made under clause (4) or clause G (4A) as a separate class of vacancies to be filled up in any succeeding year or years and such class of vacancies shall not be considered together with the vacancies of the year in which they are being filled up for determining the ceiling of fifty per cent. reservation on total number of vacancies of that year. H

SATYAJIT KUMAR & ORS. v. THE STATE OF JHARKHAND & 919 ORS. [M. R. SHAH, J.]

(5) Nothing in this article shall affect the operation of any A law which provides that the incumbent of an office in connection with the affairs of any religious or denominational institution or any member of the governing body thereof shall be a person professing a particular religion or belonging to a particular denomination. B xxx xxx xxx Article 46. Promotion of educational and economic interests of Scheduled Castes, Scheduled Tribes and other weaker sections - The State shall promote with special care the educational and economic interests of the weaker sections of C the people, and, in particular, of the Scheduled Castes and the Scheduled Tribes, and shall protect them from social injustice and all forms of exploitation. xxx xxx xxx D Article 244. Administration of Scheduled Areas and Tribal Areas - (1) The provisions of the Fifth Schedule shall apply to the administration and control of the Scheduled Areas and Scheduled Tribes in any State 1*** other than 2[the States of Assam3[,4[Meghalaya, Tripura and Mizoram]. E (2) The provisions of the Sixth Schedule shall apply to the administration of the tribal areas in 2[the States of Assam 3[,5[Meghalaya, Tripura and Mizoram] xxx xxx xxx Article 246. Subject-matter of laws made by Parliament and F by the Legislatures of States - (1) Notwithstanding anything in clauses (2) and (3), Parliament has exclusive power to make laws with respect to any of the matters enumerated in List I in the Seventh Schedule (in this Constitution referred to as the “Union List”). G (2) Notwithstanding anything in clause (3), Parliament, and, subject to clause (1), the Legislature of any State 1*** also, have power to make laws with respect to any of the matters enumerated in List III in the Seventh Schedule (in this Constitution referred to as the “Concurrent List”). H

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A (3) Subject to clauses (1) and (2), the Legislature of any State 1*** has exclusive power to make laws for such State or any part thereof with respect to any of the matters enumerated in List II in the Seventh Schedule (in this Constitution referred to as the “State List”). B (4) Parliament has power to make laws with respect to any matter for any part of the territory of India not included 2[in a State] notwithstanding that such matter is a matter enumerated in the State List. xxx xxx xxx C Article 254. Inconsistency between laws made by Parliament and laws made by the Legislatures of States - (1) If any provision of a law made by the Legislature of a State is repugnant to any provision of a law made by Parliament which Parliament is competent to enact, or to any provision of an existing law with respect to one of the matters enumerated in the Concurrent List, then, subject to the provisions of clause (2), the law made by Parliament, whether passed before or after the law made by the Legislature of such State, or, as the case may be, the existing law, shall prevail and the law made by the Legislature of the State shall, to the extent of the repugnancy, be void. (2) Where a law made by the Legislature of a State 1*** with respect to one of the matters enumerated in the Concurrent List contains any provision repugnant to the provisions of an earlier law made by Parliament or an existing law with respect to that matter, then, the law so made by the Legislature of such State shall, if it has been reserved for the consideration of the President and has received his assent, prevail in that State:

G Provided that nothing in this clause shall prevent Parliament from enacting at any time any law with respect to the same matter including a law adding to, amending, varying or repealing the law so made by the Legislature of the State. xxx xxx xxx H

SATYAJIT KUMAR & ORS. v. THE STATE OF JHARKHAND & 921 ORS. [M. R. SHAH, J.]

309. Recruitment and conditions of service of persons serving A the Union or a State - Subject to the provisions of this Constitution, Acts of the appropriate Legislature may regulate the recruitment, and conditions of service of persons appointed, to public services and posts in connection with the affairs of the Union or of any State: B Provided that it shall be competent for the President or such person as he may direct in the case of services and posts in connection with the affairs of the Union, and for the Governor of a State or such person as he may direct in the case of services and posts in connection with the affairs of the State, to make rules regulating the recruitment, and the C conditions of service of persons appointed, to such services and posts until provision in that behalf is made by or under an Act of the appropriate Legislature under this article, and any rules so made shall have effect subject to the provisions of any such Act D Para 5 of the Fifth Schedule of the Constitution

5. Law applicable to Scheduled Areas.—(1) Notwithstanding anything in this Constitution, the Governor may by public notification direct that any particular Act of Parliament or of the Legislature of the State shall not apply to a Scheduled E Area or any part thereof in the State or shall apply to a Scheduled Area or any part thereof in the State subject to such exceptions and modifications as he may specify in the notification and any direction given under this sub-paragraph may be given so as to have retrospective effect. F (2) The Governor may make regulations for the peace and good government of any area in a State which is for the time being a Scheduled Area. In particular and without prejudice to the generality of the foregoing power, such regulations may— G (a) prohibit or restrict the transfer of land by or among members of the Scheduled Tribes in such area; (b) regulate the allotment of land to members of the Scheduled Tribes in such area; H

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A (c) regulate the carrying on of business as money-lender by persons who lend money to members of the Scheduled Tribes in such area. (3) In making any such regulation as is referred to in sub- paragraph (2) of this paragraph, the Governor1*** may repeal or amend any Act of Parliament or of the Legislature of the State or any existing law which is for the time being applicable to the area in question. (4) All regulations made under this paragraph shall be submitted forthwith to the President and, until assented to by him, shall have no effect. (5) No regulation shall be made under this paragraph unless the Governor making the regulation has, in the case where there is a Tribes Advisory Council for the State, consulted such Council. D 17.2. As per Article 246(1), notwithstanding anything contained in clauses (2) and (3), Parliament shall have exclusive power to make laws with respect to any of the matters enumerated in List I in the Seventh Schedule (Union List). As per Article 246(2), notwithstanding anything in clause (3), Parliament, and, subject to clause (1), the Legislature of any State also shall have power to make laws with respect to any of the matters enumerated in List III in the Seventh Schedule (Concurrent List). As per Article 254 of the Constitution of India, if any provision of law made by the Legislature of a State is repugnant to any provision of a law made by Parliament which Parliament is competent to enact, or to any provision of an existing law with respect to one of the matters enumerated in the Concurrent List, then, subject to the provisions of clause (2), the law made by Parliament, whether passed before or after the law made by the Legislature of such State, or, as the case may be, the existing law, shall prevail and the law made by the Legislature of the State shall, to the extent of the repugnancy, be void. Thus, as per the aforesaid Constitutional provisions, law made by the Parliament is supreme and shall prevail and every State/State Legislature is bound by the law made by the Parliament. However, paragraph 5 of the Fifth Schedule to the Constitution of India is an exception. Notwithstanding the aforesaid provisions, giving supremacy to the law made by the Parliament, the Governor may direct that any particular Act of Parliament or of the H Legislature of the State shall not apply to a Scheduled Area or any part

SATYAJIT KUMAR & ORS. v. THE STATE OF JHARKHAND & 923 ORS. [M. R. SHAH, J.]

thereof in the State or shall apply to a Scheduled Area or any part thereof A in the State subject to such exceptions and modifications as he may specify in the notification. Thus, the expression “notwithstanding anything in this Constitution” is related to the Constitutional provisions regarding the supremacy of the law made by the Parliament or State Legislature. This aspect shall be discussed herein below while considering the submissions made on behalf of the appellants herein regarding paragraph B 5(1) of the Fifth Schedule to the Constitution of India. 17.3. Therefore, the short question which is posed for the consideration of this Court is, whether, in exercise of powers conferred under paragraph 5(1) of the Fifth Schedule to the Constitution, the Governor can make provisions for 100% reservation in the scheduled C Areas / Districts which may affect the rights of the citizens guaranteed under Part III, more particularly, under Article 16 (2) of the Constitution of India? Whether such reservation would not be hit by Article 13 of the Constitution of India?

18Copy pinpoint18. Identical question came to be considered by the Constitutional D Bench of this Court in the case of Chebrolu Leela Prasad Rao (supra). Before this Court the Governor of State of Andhra Pradesh issued GO in exercise of powers under paragraph 5(1) of the Schedule 5 of the Constitution of India, directing the posts of teachers in educational institutions in the scheduled tribe areas shall be reserved for Scheduled E Tribes only notwithstanding anything contained in any other order or rule or law in force. Several questions were referred to the Constitution Bench. The following questions were ultimately framed for consideration by the Constitutional Bench: (1) What is the scope of paragraph 5(1), Schedule V to the Constitution of India? F

(a) Does the provision empower the Governor to make a new law? (b) Does the power extend to subordinate legislation? (c) Can the exercise of the power conferred therein G override fundamental rights guaranteed under Part III? (d) Does the exercise of such power override any parallel exercise of power by the President under Article 371D? H

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A (2) Whether 100% reservation is permissible under the Constitution? (3) Whether the notification merely contemplates a classification under Article 16(1)and not reservation under Article 16(4)? B (4) Whether the conditions of eligibility (i.e., origin and cut-off date) to avail the benefit of reservation in the notification are reasonable?” 18.1. Question No.1(a), (b), (c) and question no.3 referred to herein C above are relevant for our purpose. 18.2. After taking into consideration the relevant Constitutional provisions viz. Article 244, Fifth Schedule, so far as question No.1(a) viz. whether the provision empower the Governor to make a new law is concerned, it is observed and held by the Constitution Bench that the D Governor’s power to make new law is not available in view of the clear language of Para 5(1) Fifth Schedule does not recognize or confer such power, but only power is not to apply the law or to apply it with exceptions or modifications.(para 51) 18.3. Answering question no.1(b) viz. does the power extend to subordinate legislation, it is observed and held that Rules framed under the proviso to Article 309 of the Constitution cannot be said to be an Act of Parliament or of State Legislature. It is observed and held that the power of Governor under Para 5(1) of Schedule V of the Constitution is restricted to modifying or not to apply, Acts of the Parliament or Legislature of the State. Thus, Rules could not have been amended in the exercise of the powers conferred under Para 5(1) of the Schedule V. It is further observed and held that the Rules made under the proviso to Article 309 of the Constitution cannot be said to be an enactment by the State Legislature. (paras 52 to 57). 18.4. While answering question 1(c) viz. can the exercise of the powers conferred under Para 5(1) of Fifth Schedule override fundamental rights guaranteed under Part III, after considering the decisions of this Court in the case of Kesavananda Bharati Vs. State of Kerala reported in (1973) 4 SCC 225; Waman Rao Vs. Union of India reported in (1981) 2 SCC 362; I.R. Coelho (Dead) by Lrs. Vs. State of T.N. reported in (2007) 2 SCC 1; S.R. Chaudhuri Vs. H

SATYAJIT KUMAR & ORS. v. THE STATE OF JHARKHAND & 925 ORS. [M. R. SHAH, J.]

State of Punjab reported in (2001) 7 SCC 126; Ajay Hasia Vs. Khalid A Mujib Sehravadi reported in (1981) 1 SCC 722; E.P. Royappa Vs. State of Tamil Nadu reported in (1974) 2 SCC 3; Maneka Gandhi Vs. Union of India reported in (1978) 1 SCC 248; Ramana Dayaram Shetty Vs. International Airport Authority of India and Ors. reported in (1979) 3 SCC 489; Neelima Misra Vs. Harinder Kaur B Paintal reported in (1990) 2 SCC 746 and Peerless General Finance and Investment Co. Ltd Vs. Reserve Bank of India reported in (1992) 2 SCC 343, it is finally observed and held that the power conferred on the Governor to deal with the scheduled areas is not meant to prevail over the Constitution. The power of the Governor is pari passu with the legislative power of Parliament and the State. The legislative C power can be exercised by the Parliament or the State subject to the provisions of Part III of the Constitution. Thereafter, it is ultimately observed and held that the power of the Governor does not supersede the fundamental rights guaranteed under Part III of the Constitution. It has to be exercised subject to Part III and other provisions of the D Constitution. It is further observed and held that when Para 5 of the Fifth Schedule confers power on the Governor, it is not meant to confer an arbitrary power. The Constitution can never aim to confer any arbitrary power on the constitutional authorities. They are to be exercised in a legal and rational manner keeping in view the objectives and provisions of the Constitution. The powers are not in derogation but in the E furtherance of the Constitutional aims and objectives. (para 78). While holding so, the Constitutional Bench also considered the effect of the non-obstante clause used in para 5(1) of the Fifth Schedule of the Constitution. While considering the effect of the non-obstante clause, it is observed in para 69, 70, 74 and 75 as under: F “69. Para 5(1) of the Fifth Schedule of the Constitution starts with a non-obstante clause. What is the effect of the non -obstante clause vis-a-vis the applicability to other provisions of the Constitution? Whether the provisions of Para 5(1) prevail over all other provisions of the Constitution? Whether the fundamental G rights in Part III of the Constitution are inapplicable and need not be satisfied?

70. The provision of the Fifth Schedule beginning with the words “notwithstanding anything in this Constitution” cannot be construed as taking away the provision outside the limitations on H

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A the amending power and has to be harmoniously construed consistent with the foundational principles and the basic features of the Constitution. XXXXXXXXXXXX

B 74. The non-obstante clause contained in Para 5(1) of the Fifth Schedule of the Constitution means the Governor can exercise power in spite of the provisions contained in Article 245 of the Constitution, conferring the power upon Parliament to make laws and the legislature of the State. The Parliament has the power to enact the law. It cannot be questioned on the ground that it would have extra territorial operation.

75. The non-obstante clause has also been considered in Smt. Parayankandiyal Eravath Kanapravan Kalliani Amma & Ors. v. K. Devi & Ors., AIR 1996 SC 1963. The scope has to be considered in the context and purpose for which it has been carved out.” 18.5. As observed herein above, we are also of the opinion that the non-obstante clause contained in para 5(1) of the Fifth Schedule of the Constitution shall be read with respect to power of the Governor to suspend and/or modify the law made by the Parliament despite Articles E 244 and 245 of the Constitution of India. It cannot be read as conferring upon the Governor absolute power and/or unfettered power, notwithstanding the provisions contained in Part III of the Constitution.

19Copy pinpoint19. While answering question no.2 viz. whether 100% reservation is permissible under the Constitution, after referring to and / or considering various decisions of this Court on 100% reservation and after considering Articles 14, 15 and 16 and other relevant Constitutional provisions and after taking into consideration decision of this Court in the case of Indra Sawhney (supra), it is ultimately observed and held that the reservation that is permissible by protective mode, by making it 100 percent would become discriminatory and impermissible. It is further observed and held that the opportunity of public employment cannot be denied unjustly to the incumbents, and it is not the prerogative of a few. The citizens have equal rights, and the total exclusion of others by creating an opportunity for one class is not contemplated by the founding fathers of the Constitution of India. H

SATYAJIT KUMAR & ORS. v. THE STATE OF JHARKHAND & 927 ORS. [M. R. SHAH, J.]

19.1. Thus, in the case of Chebrolu Leela Prasad Rao (supra), A after considering the relevant Constitutional provisions in detail including the powers of the Governor conferred in para 5(1) of the Fifth Schedule of the Constitution of India, it is ultimately observed and held as under: “166. We answer the questions referred to us thus: B Question No.1: The Governor in the exercise of powers under Para 5(1), Fifth Schedule of the Constitution, can exercise the powers concerning any particular Act of the Parliament or the legislature of the State. The Governor can direct that such law shall not apply to the Scheduled Areas or any part thereof. The Governor is empowered to apply such law to the Scheduled Area C or any part thereof in the State subject to such exceptions and modifications as he may specify in the notification and can also issue a notification with retrospective effect. Question No.1(a): The Governor is empowered under Para 5(1), Fifth Schedule of the Constitution, to direct that any particular D Act of Parliament or the Legislature of the State, shall not apply to a Scheduled Area or apply the same with exceptions and modifications. The Governor can make a provision within the parameters of amendment/ modification of the Act of Parliament or State legislature. The power to make new laws/regulations, is 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’s power under Para 5(1) of the Fifth Schedule to the Constitution is subject to some restrictions, which have to be observed by the Parliament or the legislature of the State while making law and cannot override the fundamental rights guaranteed under Part III of the Constitution. Question No.1(d): In exercise of power under Para 5(1) of the Fifth Schedule to the Constitution of India, the Governor cannot H

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A override the notification issued by the President in the exercise of powers under Article 371D. The power has to be exercised harmoniously with such an order issued under Article 371D, not in conflict thereof. Question No.2: G.O.Ms. No.3/2000 providing for 100 per cent reservation is not permissible under the Constitution, the outer limit is 50 per cent as specified in Indra Sawhney (supra). Question No.3: The notification in question cannot be treated as classification made underArticle 16(1).Once the reservation has been provided to Scheduled Tribes under Article 16(4), no such power can be exercised under Article 16(1). The notification is violative of Articles 14 and 16(4) of the Constitution of India. Question No.4 : The conditions of eligibility in the notification with a cut-off date i.e. 26-1-1950, to avail the benefits of reservation, is unreasonable and arbitrary one.” D

20Copy pinpoint20. Applying law laid down by the Constitution Bench of this Court in the case of Chebrolu Leela Prasad Rao (supra), to the facts of the case on hand, the impugned Order/ Notification No.5938 and the Order No.5939 dated 14.07.2016 providing 100% reservation for the local residents of concerned Scheduled Districts/ Areas only can be said to E be (1) beyond the scope and ambit of powers conferred upon the Governor under para 5(1) of the Fifth Schedule of the Constitution of India; F (2) 100% reservation provided for the local residents of the concerned Scheduled Districts / Areas only would be violative of Article 16(2) of the Constitution of India and affecting rights of the other candidates / citizens of non- scheduled areas / Districts guaranteed under Part III of the Constitution of India; (3) the exercise of powers by the Governor under para 5(1) of the Fifth Schedule of the Constitution of India modifying Recruitment Rules, 2015 which are framed under Article 309 of the Constitution of India which can be said to be subordinate legislation and cannot be said to be an Act or

SATYAJIT KUMAR & ORS. v. THE STATE OF JHARKHAND & 929 ORS. [M. R. SHAH, J.]

the Law made by the Parliament and / or State Legislature A is beyond the scope and ambit of Governor’s power under para 5(1) of the Fifth Schedule of the Constitution of India.

21Copy pinpoint21. The submission on behalf of the appellants and State that the decision of this Court in the case of Chebrolu Leela Prasad Rao (supra) shall not be applicable to the facts of the case on hand inasmuch as in the said case there was 100% reservation for Scheduled Tribe candidates which was held to be violating the rights of the other reserved category candidates also and that the decision of this Court in the case of Chebrolu Leela Prasad Rao (supra) is required to be reconsidered is concerned has no substance. What is required to be considered is the ratio decidendi and law laid down by this Court. There is clear law laid down by Constitution Bench of this Court as noted above. The decision of the Constitution Bench which is rendered after considering the relevant constitutional provisions and a number of decisions of this Court is as such binding on us. It cannot be said that the relevant Constitutional provisions and/or binding decisions of this Court have not been dealt with and/or considered by this Court. The Constitutional Bench decision of this Court in the case of Chebrolu Leela Prasad Rao (supra) also cannot be said to be per incuriam ignoring and/or taking a contrary view than any of the binding decision of this Court. As such and as observed herein above, we reiterate that we are bound by the law laid down by this Court, more particularly, a Constitution Bench decision of this Court. We see no reason not to follow the binding Constitution Bench decision of this Court in the case of Chebrolu Leela Prasad Rao (supra). We see no reason to take a different view than the view taken by the Constitution Bench of this court in the case of Chebrolu Leela Prasad Rao (supra). We also see no reason to refer the matter to a Larger Bench as prayed by some of the counsel appearing on behalf of the appellants – candidates belonging to the Scheduled Areas/ Districts.

22Copy pinpoint22. One other submission which is made by the learned Advocate General appearing on behalf of the State before the High Court was that in order to overcome the factors of low human development indices, backwardness, poverty etc., in the scheduled districts and to secure justice - social, economic and political, the notification was issued by the Governor of the State for protecting the interests of the residents in the scheduled districts. That even otherwise, it would be of immense benefit to the H

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A school-going children in the scheduled districts, if they are taught in their own tribal language by the local teachers, than the outsiders, who may not be well conversant with the local language. At the outset, it is required to be noted that such submission was not pressed into service heavily by any of the counsel appearing on behalf of the appellants before the High B Court. However, it is to be noted that in the case of Chebrolu Leela Prasad Rao (supra) the Constitution Bench of this Court also considered the very submission and negated the same by observing in para 130 and 131 as under: “130. No law mandates that only tribal teachers can teach in the scheduled areas; thus, the action defies the logic. Another reason given is the phenomenal absenteeism of teachers in schools. That could not have been a ground for providing 100 percent reservation to the tribal teachers in the areas. It is not the case that incumbents of other categories are not available in the areas. When a district is a unit for the employment, the ground applied for providing reservation for phenomenal absenteeism is irrelevant and could not have formed the basis for providing 100 percent reservation. The problem of absenteeism could have been taken care of by providing better facilities and other incentives.

E 131. The reason assigned that reservation was to cover impetus in the scheduled areas in the field of education and to strengthen educational infrastructure is also equally bereft of substance. By depriving opportunity to the others, it cannot be said that any impetus could have been given to the cause of students and effective education, and now that could have been strengthened. The provisions of 100 percent reservation are ignoring the merit. Thus, it would weaken the educational infrastructure and the merit and the standard of education imparted in the schools. Educational development of students cannot be made only by a particular class of teachers appointed by providing reservation, ignoring merit in toto. The ideal approach would be that teachers are selected based on merit.” 22.1. Even otherwise, it is to be noted that it may be true that so far as basic education (at the level of primary section) is concerned, it H

SATYAJIT KUMAR & ORS. v. THE STATE OF JHARKHAND & 931 ORS. [M. R. SHAH, J.]

may help student at the primary level (while providing basic education) A to be taught in their own tribal language. But the same principle may not be applicable when question is of providing education at higher level viz. above 5th standard. Therefore, if the candidates belonging to other areas (non-Scheduled Areas/ Districts) are given an opportunity to impart education (who may be more meritorious than the candidates belonging B to the Scheduled Areas / Districts) than it will be more beneficial to the students belonging to the Scheduled Areas and their quality of the education shall certainly improve. The quality of education of the school- going children cannot be compromised by giving 100% reservation in favour of the teachers of the same/some districts and prohibiting the appointment to more meritorious teachers. C

23Copy pinpoint23. At this stage, it is required to be noted that even the impugned Order/Notification dated 14.07.2016 and the advertisement providing 100% reservations for local residents of concerned Scheduled Areas/ Districts can be said to be violative of Article 13 of the Constitution of India also. As observed herein above, the impugned Order/Notification D making 100% reservation for the local resident of the concerned Scheduled Districts/Areas is violative of Article 16(2) of the Constitution of India as it affects the fundamental rights guaranteed to the candidate belonging to the non-Scheduled Areas guaranteed under part III of the Constitution of India. As per Article 13 of the Constitution of India, the E State shall not make any law which takes away or abridges the rights conferred by this Part and any law made in contravention of Article 13(2) shall to the extent of the contravention, be void. Therefore, also impugned Notification/Order/Advertisement making 100% reservation for the local resident of the concerned Scheduled Areas / Districts shall be ultra vires Article 13 of the Constitution of India and shall be F void.

24Copy pinpoint24. Even under Article 16(3) of the Constitution of India, it is the Parliament alone, which is authorized to make any law prescribing, in regard to a class or classes of employment or appointment to an office under the Government of, or any local or other authority within, a State G of Union Territory, any requirement as to residence within the State or Union territory prior to such employment or appointment. As per Article 35 of the Constitution of India, notwithstanding anything contained in the Constitution, the Parliament shall have and the Legislature of a State shall not have the power to make laws with respect to any of the matters H

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A which, under clause (3) of Article 16 may be provided for law made by Parliament. Therefore, impugned Notification/Order making 100% reservation for the local resident of the concerned Scheduled Area/ Districts (reservation on the basis of resident) is ultra vires to Article 35 r/w Article 16(3) of the Constitution of India.

25Copy pinpoint25. Applying the law laid down by this Court in the case of Chebrolu Leela Prasad Rao (supra) and in view of the above discussion and for the reasons stated above, the High Court has not committed any error in concluding and holding that the Notification No.5938 and Order No.5939 dated 14.7.2016 issued by the State Government providing 100% reservation for the local residents of C concerned Scheduled Districts/Areas as being unconstitutional and ultra vires Articles 14, 13(2), 15 and 16(2) of the Constitution of India. It is rightly observed and held that said Notification and Order would also violate Articles 16(3) and 35(a-i) of the Constitution of India. The High Court has also rightly observed and held that aforesaid Notification and D Order is ultra vires to paragraph 5(1) of the Fifth Schedule of the Constitution of India. We are in complete agreement with the view taken by the High Court.

26Copy pinpoint26. Now, so far as the prayer made on behalf of the respective appellants herein- candidates belonging to the Scheduled Districts / Areas E who were already appointed and whose appointments are held to be illegal is concerned and their plea that the judgment of the High Court may be made applicable prospectively is concerned, the same may not be accepted. Reliance is placed upon the order passed by this Court in the case of Chebrolu Leela Prasad Rao (supra), by which, even this Court saved the appointments already made and the another decision of this Court in the case of Kailash Chand Sharma (supra) is concerned, such a prayer is not to be accepted. Once the Notification/Order dated 14.07.2016 are held to be ultra vires, as a necessary consequences, appointments made pursuant to such unconstitutional Notification/Order shall have to be set aside and such appointments as such cannot be regularized. As observed and held by this Court in the case of Secretary, State of Karnataka and Ors. Vs. Umadevi (supra), there is a distinction between illegal and irregular appointment and that the former cannot be regularized. 26.1. Now, so far as reliance placed upon the decision / order passed by this Court in the case of Chebrolu Leela Prasad Rao (supra)

SATYAJIT KUMAR & ORS. v. THE STATE OF JHARKHAND & 933 ORS. [M. R. SHAH, J.]

(para 167 to 169) is concerned, at the outset, it is required to be noted that before this Court the appointments were made since 1986 onwards and such appointments continued for a number of years and therefore, this Court saved the appointments already made which were continued for a number of years. While saving the appointments already made (which as such were found to be illegal), this Court specifically observed that “in the peculiar facts and circumstances, the incumbents, who have been appointed, cannot be said to be at fault and they belong to the Scheduled Tribes”. Even saving of the appointments was conditional as observed in para 168. 26.2. Now, so far as reliance placed upon the decision of this C Court in the case of Kailash Chand Sharma (supra) in support of the prayer to apply judgment of the High Court prospectively and/or to save appointments already made is concerned, it is to be noted that in the said judgment also in para 47, it is specifically observed by this Court that the Court has moulded the relief on a consideration of special facts and circumstances of the case by acting within the framework of powers vested in this Court under Article 142 of the Constitution. It is further observed that even the judgment may not be treated as a binding precedent in any case that may arise in future. Therefore, once this Court has specifically observed that the said judgment may not be treated as a binding precedent in any case that may arise in future, the said judgment ought not to have been relied upon on behalf of the appellants. 26.3. In the present case, impugned Notification / Order is of the year 2016. The TGT recruitment process was initiated vide advertisement dated 28.12.2016 as modified on 04.02.2017 and same came to be challenged during the pendency of the recruitment process in the year 2017 itself. It is also required to be noted that by order dated 21.2.2019 the Division Bench of the High Court directed that notice be published in the daily newspapers having wide circulation about institution of the writ petition so that the person interested may intervene in the writ petition. Pursuant to such notice, several interlocutory applications/intervener applications came to be filed, which came to be allowed by the High Court. Thereafter, by order dated 18.09.2019, taking into consideration the question of Constitutional importance involved in the matters, the Division Bench of the High Court referred the matter to be decided by a Larger Bench. By the same order dated 18.09.2019, the High Court H

p. 934 Copy page pinpoint

A stayed the further implementation and operation of the impugned Notification No.5938 and Order No.5939 dated 14.7.2016, subject to the appointments already made, if any. Thus, from the aforesaid it can be seen that the original writ petitioners are always vigilant and diligent and approached the High Court at the first available opportunity. Their valuable right for consideration of their cases for appointment in the B Scheduled Districts / Areas have been taken away. They have been successful before the High Court. Therefore, in the facts and circumstance of the case, the decision relied upon on behalf of the appellants to make impugned judgment and order passed by the High Court prospectively shall not be applicable to the facts of the case on hand. In the facts and circumstances of the case, the prayer on behalf of the appellants herein to make the impugned judgment and order passed by the High Court applicable prospectively, deserves to be rejected and is accordingly rejected.

27Copy pinpoint27. However, at the same time and in the facts and circumstances of the case and more particularly, by quashing and setting aside the appointments already made there is a likelihood of more complication which would not be in the larger public interest. Hence, we are of the opinion that this is a fit case to mould the relief. Apart from the fact that the appellants herein – selected candidates belonging to the Scheduled E Districts/Areas are already working since last about three years, in case appointments already made are not protected then thousands of schools in the State of Jharkhand would be without teachers and the ultimate sufferers would be the children of tribal areas. In view of the impugned judgment and order passed by the High Court, by which, the High Court has held all the appointments made in Scheduled Districts/Areas illegal and has further directed to go for fresh recruitment, the State will have to undergo fresh recruitment process which may take considerable time and, in the meantime, there shall be vacancies and number of schools in the tribal areas shall be without teachers. Therefore, the Court has to strike a balance between the rights of the original writ petitioners as well as persons/teachers already appointed (whose appointments are held to be illegal) and also the public interest. Hence, we are of the opinion that while moulding the relief, instead of initiating a fresh recruitment process, if directions are issued for preparation of fresh selection list based on revised merit and based on already published cut off obtained by the last selected candidate in each TGT subject against respective categories., H

SATYAJIT KUMAR & ORS. v. THE STATE OF JHARKHAND & 935 ORS. [M. R. SHAH, J.]

it will meet ends of justice and striking the balance between the competing rights so that persons already appointed may not have to lose their employment/job and at the same time the candidates belonging to the non-Scheduled Districts/Areas may also get their opportunity for appointment as a teacher on merits in the Scheduled Districts/Areas. We are of the view that no useful purpose will be served to go in for fresh/de novo recruitment process as directed by the High Court in the impugned judgment and order.

28Copy pinpoint28. In view of the above discussion and for the reasons stated above, we uphold the common impugned judgment and order passed by the High Court declaring the impugned Notification/Order dated C 14.07.2016 as unconstitutional and ultra vires Articles 14, 16(2), 16(3) and 35(a-i) of the Constitution of India. We are in complete agreement with the view taken by the High Court. Present Appeals challenging the impugned common judgment and order passed by the High Court are hereby dismissed to the aforesaid extent. D However, at the same time, the directions issued by the High Court in the impugned judgment and order while setting aside all the appointments made pursuant to the Notification / Order dated 14.07.2016 and Advertisement No.21 of 2016 dated 28.12.2016 as modified on 04.12.2017 and to go in for fresh/de novo recruitment process for the Scheduled Areas/Districts is hereby modified. It is now directed that instead of fresh/de novo recruitment process by setting aside the appointments already made in the Scheduled Districts/Areas, the State shall revise the merit list based on the already published cut off obtained by the last selected candidates in each TGT subject against the respective categories with respect to entire State and respective candidates belonging to the non-Scheduled Areas and Scheduled Areas (Districts) shall be adjusted accordingly on the basis of individual merit of the candidates. The present directions are issued considering the peculiar facts and circumstances of the case and more particularly considering the fact that there are already vacant posts of teachers in the State (in both Scheduled and non-Scheduled Area). We are of the view that if the appointments already made are set aside and fresh de novo recruitment process for such posts is initiated, a number of schools in the Scheduled Areas shall be without any teacher which may ultimately affect larger public interest and education of concerned children in the Scheduled Areas. H

p. 936 Copy page pinpoint

A Present direction is issued in exercise of powers under Article 142 of the Constitution of India in the larger public interest of Scheduled Areas/Districts. Present appeals are partly allowed to the aforesaid extent modifying the impugned common judgment and order passed by the High B Court as observed herein above. In the facts and circumstances of the case, there shall be no order as to costs.

Divya Pandey Appeals partly allowed. C (Assisted by : Mahendra Yadav, LCRA)