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A Five-Judge Bench of Supreme Court has directed the respondent ­States not to exceed the 50% limit of reservation in future

New Delhi: The Supreme Court of India has passed an order directing that Governments were bound by the dictum laid down by the Apex Court in Indra Sawhney and other decisions holding that the limit of reservation cannot exceed 50%.

Responding to petition against an Andhra Pradesh Government Notification of year 2000 for 100% reservation of posts of teachers for the ST category in the Scheduled Areas, the Supreme Court has said in its order that “there was no rhyme or reason with the State Government to resort to 100% reservation”.

A five Judge Bench headed by Justice Arun Mishra, and comprising Indira Banerjee, Vineet Saran, M.R. Shah, and Aniruddha Bose, passed the order on 22 April 2020 in response to a civil appeal by Chebrolu Leela Prasad Rao and others v/s State of Andhra Pradesh and others.

On 10 January 2000, the Government of the erstwhile State of Andhra Pradesh issued an order providing 100% reservation to the Scheduled Tribe candidates out of whom 33.1/3% was to be women for the post of teachers in the schools in the scheduled areas in the State of Andhra Pradesh.

While passing the order, the Apex Court addressed the following questions:

The scope of paragraph 5(1), Schedule V to the Constitution of India?

(a) Does the provision empower the Governor to make a new law?
(b) Does the power extend to subordinate legislation?
(c) Can the exercise of the power conferred therein override fundamental rights guaranteed under Part III?
(d) Does the exercise of such power override any parallel exercise of power by the President under Article 371D?
(2) Whether 100% reservation is permissible under the Constitution?
(3) Whether the notification merely contemplates a classification under Article 16(1) and not reservation under Article 16(4)?
(4) Whether the conditions of eligibility (i.e., origin and cut-off date) to avail the benefit of reservation in the notification are reasonable?”

Facts of the case

On 5 November 1986, the Andhra Pradesh Governor, in exercise of power under para 5(1) of Schedule V to the Constitution of India, had issued an order directing the posts of teachers in educational institutions in the scheduled tribe areas shall be reserved for Scheduled Tribes only notwithstanding anything contained in any other order or rule or law inforce.

The Andhra Pradesh Administrative Tribunal quashed the notification on 25 August 1989.

The Administrative Tribunal order was questioned in Court and the petition was dismissed as withdrawn on 20 March 1998.

On 25 April 1987, a Government order was issued to amend GOMs.No.275 dated 5 November 1986 to allow the appointment of non-tribals to hold the posts of teachers in the scheduled areas till such time the qualified local tribals were not made available. After that, non­-tribals who were appointed as teachers in the scheduled areas filed Writ Petition No.5276/1993 in the High Court of Andhra Pradesh at Hyderabad against termination of their services. It was allowed by an order on 5 June 1996 and GOMs. No.73 of 25 April 1987, and the advertisements were held to be violative of Article 14 of the Constitution of India.

In a writ appeal, the order of the Single Bench was set aside by the Division Bench vide judgment and order of 20 August 1997. The decision in W.P. No.16198/1988 thus prevailed.

The non­-tribal appointees preferred

Civil Appeal 6437/1998 before the Supreme Court was allowed on 18 December 1998. After the Supreme Court rendered the decision on that date, the State Government issued a fresh notification on 10 January 2000, effectively providing for 100% reservation in respect of appointment to the posts of teachers in the scheduled areas.

The tribunal set aside the GOMs. Aggrieved by this, writ petitions were filed in the High Court, and a 3­-Judge Bench by majority upheld the validity of the Government order.

The majority view opined that historically scheduled areas were treated specially, and affirmative action taken was in the constitutional spirit. The notification was a step for increasing literacy in the scheduled areas and also aimed at providing the availability of teachers in every school in the scheduled areas. 100% reservation can be sustained on the ground that it was based on intelligible differentia, and the classification has nexus with the object sought to be achieved.

The majority view of the High Court Bench was that the Government order became necessary considering the phenomenal absenteeism of the teachers in the schools situated in the scheduled areas and was a step in aid to promote educational developments of tribals. In extraordinary situations, reservation can exceed 50%. The Governor possessed the power to issue the impugned notification under Schedule V, para 5(1) of the Constitution.

The majority view was also that the same overrides all other provisions of the Constitution, including Part III of the Constitution of India.

But the High Court, in the minority view opined that providing 100% reservation for Scheduled Tribes in scheduled areas offends the spirit of Articles 14 and 16 of the Constitution of India. The Governor is not conferred power to make any law in derogation to Part III or other provisions of the Constitution of India in the exercise of his power under Clause I, Para 5 of Schedule V.

It also opined that the reservation under Article 16(4) should not exceed 50%. Further that little relaxation was permissible. The rules made under Article 309 of the Constitution could not be treated as an Act of Parliament or State Legislature.

Andhra Pradesh order of January 2000

The AP order of 10 January 2000, validity of which was questioned in Supreme Court, reserved all posts in the educational institutions within the scheduled areas in favour of the local Scheduled Tribes.

Government order challenged in the Apex Court:

“Whereas, under sub-paragraph (1) of paragraph 5 of the Fifth Schedule to the Constitution of India, the Governor of Andhra Pradesh may by public notification direct that any particular Act of Parliament or of Legislature of the State shall not apply to the Scheduled Areas or any part thereof in the State or shall apply to a scheduled area or any part thereof subject to specified exceptions and modifications;

2. AND WHEREAS, in G.O.Ms.No.275, Social Welfare Department dated 5.11.1986, a notification has been issued exercising the powers conferred under sub-paragraph (1) of paragraph 5 of the Fifth Schedule to the Constitution of India directing that the posts of teachers in the Educational Institutions in the Scheduled Areas of State shall be filled in only by the local members of the Scheduled Tribes;
3. AND WHEREAS, the Andhra Pradesh Administrative Tribunal in its order dated 25.8.1989 in R.P.Nos.6377 and 6379 of 1988 quashed the orders issued in G.O.Ms.No.275, Social Welfare Department dated 5.11.1986 on the ground that the notification issued under sub-paragraph (1) of paragraph 5 of the Fifth Scheduled to the Constitution of India does not reflect the existence of either a State or a Central Legislation referable for issuing such notification;

4. AND WHEREAS, the Division Bench of the High Court of Andhra Pradesh in its judgement dated 20-8-1997 in Writ Appeal No.874 of 1997 filed by the Project Officer, I.T.D.A., Rampachodayaram, East Godavari District, directed to continue the petitioners respondents in their respective posts of teachers without any break as temporary employees until replaced by the qualified local tribals as and when such tribals are available to fill up those posts;

5. AND WHEREAS, the Andhra Pradesh Administrative Tribunal subsequently while disposing of O.A.No.4598/97 in its order dt.22.9.1997 directed the respondents to follow the statutory rules while making recruitment to the posts of Secondary Grade Teachers and also Telugu Pandits, Grade. In Agency Areas without taking into consideration the orders issued in G.O.Ms.No.275, Social Welfare Department, dated 5.11.1986.

6. AND WHEREAS, the Supreme Court of India while allowing Civil Appeal No.6437/98 in its order dated 18th December 1998, set aside the orders of the Andhra Pradesh Administrative Tribunal on the ground that the State withdraw the appeals arising out of the S.L.P. Nos.14562-63 of 1989:

7. AND WHEREAS, the Government considers that rule 4 (b) of the Andhra Pradesh School Educational Subordinate Service Rules, 1992 and rule 22A of the Andhra Pradesh State and Subordinate Service Rules, 1996 shall be modified to the extent that only Scheduled Tribe Women shall be appointed in Scheduled Areas against 33 1/3% reservation in respect of direct recruitment;
8. AND WHEREAS, the consultation of the Tribes Advisory Council has been made as required under sub-paragraph (5) of paragraph 5 of the Fifth Schedule to the constitution of India;

9. AND WHEREAS, the Government of Andhra Pradesh in order to strengthen the educational infrastructure in the Scheduled Areas, to promote educational development of Tribals, to solve the phenomenal absenteeism of Teachers in the Schools situated in Scheduled Areas and with a view to protect the interests of local tribals have decided to reserve the posts of teachers in favour of local Scheduled Tribes candidates;

10. AND WHEREAS, the Government considered to re-issue the said orders retrospectively from 5.11.1986 keeping in view the provisions of sub-paragraph (1) of paragraph 5 of Fifth Schedule to the Constitution;

11. The following notification will be published in part-IV-B Extraordinary issue of the Andhra Pradesh Gazette, dated 10.1.2000.

NOTIFICATION
In exercise of the power conferred by subparagraph (1) of paragraph 5 of the Fifth Schedule to the Constitution of India and in Supersession of the notification issued in G.O.Ms.No.275,
Social Welfare Department, dated the 5th November 1986, as subsequently amended in G.O. Ms. No.73, Social Welfare Department, dated the 25th April 1988, the Governor of Andhra Pradesh hereby directs that sections 78 and 79 of the Andhra Pradesh Education Act, 1982 (Act 1 of 1982) and sections 169, 195 and 268 of the Andhra Pradesh Panchayat Raj Act, 1994 (Act 13 of 1994) and rule 4 (a) of the Andhra Pradesh School Educational Subordinate Service Rules issued in G.O.Ms.No.538 Education (Ser. II) Department, dated the 20th November 1998 and rule 22 and 22A of the Andhra Pradesh State and Subordinate Service Rules, 1996 and any other rules made in this regard shall apply to the appointment of posts of teachers in schools situated, in the Scheduled areas in the State subject to the modification that all the posts of teachers in the Schools situated in Scheduled Areas in the State of Andhra Pradesh shall be filled in by the local Scheduled Tribe candidates only out of whom 33 1/3% shall women.

EXPLANATION:- For the purpose of this notification, the ‘Local Scheduled Tribe Candidate’ means, the candidate belonging to the Scheduled Tribes notified as such under article 342 of the Constitution of India and the candidates themselves or their parents have been continuously residing in the scheduled areas of the Districts in which they are residents till to date since the 26th January 1950.”

The Supreme Court order says:

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.

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 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.

The Governor is empowered under Para 5(1), 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/ 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.

The power of the Governor under Para 5(1), Fifth Schedule of 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.

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.

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.

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.

The Supreme Court has directed the respondent ­States not to exceed the 50% limit of reservation in future.

As a sequel to the quashing of G.O. Ms. No.3 of 2000, the appointments made in excess of the permissible reservation cannot survive and should be set aside, the SC order says. 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.

The Apex Court has taken into consideration the “cry within the reserved classes” pointing out that 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.

The the opinion of the Supreme Court, it was rightly urged by Senior Advocate 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 and as constitutionally envisaged.

Addressing another important question on the issue of the cutoff date of residence for fixing reservation under the notification quashed as the government order in question required candidate or the parents to reside in the area continuously w.e.f. 26 January 1950 to date, the Suypreme Court has said there is no rhyme or reason to require continuous residence for last 50 years or more.

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 cutoff

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 26 January 1950 in the area taken care of in the Presidential Order under Article 371­D. 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 the classification made failed to qualify the parameters of Articles 14, 15 and 16 of the Constitution of India.