Chebrolu Leela Prasad Rao & Ors. vs State of A.P. & Ors.

Constitution of India – Para 5(1) of Schedule V and Art. 309 – A.P. State and Subordinate Service Rules, 1996 – rr. 22, 22 A – G.O.Ms. No. 3/2000 issued by the erstwhile State of Andhra Pradesh provided 100% reservation to the Scheduled Tribe candidates for the post of teachers in the schools in the scheduled areas – The G.O.Ms. No. 3/2000, inter alia, refers to the Rules, 1996 and the said rules have been framed under proviso to Art. 309 of the Constitution – The rules 22 and 22 A framed u/Art.309 were amended – Held: 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 the Parliament or legislature of the State – Thus, the rules could not have been amended in the exercise of the powers conferred under Para 5(1) Schedule V – The rules made under the proviso to Art.

309 of the Constitution cannot be said to be an enactment by the State legislature – Thus, it was not open to the Governor to issue the impugned G.O.Ms. No. 3/2000.

Constitution of India – Para 5(1) of Schedule V – Power of Governor extend to subordinate legislation or not – Held: 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.

Constitution of India – Para 5(1) of Schedule V – Can exercise of the power conferred in para 5(1) of the fifth Schedule override fundamental rights guaranteed under Part-III – Held: The power of the Governor does not supersede the fundamental rights under part-III 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 power is not in derogation but the furtherance of the Constitutional aims and objectives.

Constitution of India – Para 5(1) of Schedule V – Effect of the non-obstante clause – Held: 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 limitation on the amending power and has to be harmoniously construed consistent with the fundamental principles and basic features of the Constitution.

Constitution of India – Para 5(1) of Schedule V – Whether there is any conflict between the Presidential order and G.O.Ms. No. 3/2000 issued under the order of the Governor under para 5(1) of the Schedule V – Held: 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% reservation was made vide G.O.Ms. No. 3/2000 by the Governor and it is also not disputed that aspiring candidates cannot apply outside the district/zone because of the restrictions u/Art. 371D of the Constitution – Thus, there is a clear repugnancy between the notification issued by the president and the subsequent order issued by the Governor under Para 5(1) of the Schedule V – It is not possible to harmonise both notifications – The Governor is competent to issue an order which is not in conflict with Presidential Order – The Governor could not have issued the order in derogation to the Presidential order – In the instant case, 100% reservation could not have been provided as that violates the Presidential Order. Constitution of India – Arts. 16(1) and 16(4) – Whether notification G.O.M. No. 3/2000 contains classification u/Art. 16(1) and does not provide reservation u/Art. 16(4) of the Constitution – Held: G.O.Ms No. 3/2000 provided 100% reservation – It cannot be said to be a case of classification that has been made u/Art. 16(1) – 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 u/Art. 16(4) was made – The order providing 100% reservation is arbitrary, illegal, impermissible and unconstitutional. Constitution of India – G.O.Ms No. 3/2000 required candidate or the parents to reside in the area continuously w.e.f. 26.01.1950 to date – Propriety of – Held: 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-a-vis to the Scheduled tribes also settled in the area – The conditions of eligibility in the notification with cut-off date i.e. 26.01.1950, to avail benefit of reservation, is unreasonable and arbitrary one. Allowing the appeals, the Court

HELD: What is the scope of Para 5(1) of Schedule V of the Constitution of India?; and Does the provision empower the Governor to make a new law?

1. Para 5(1) of Schedule V to the Constitution confers power upon the Governor to exclude law, which is applicable in a scheduled area. It also empowers the Governor to apply the same with exceptions and modifications as he deems fit. However, the power to exclude an area from applicability, modification, and to create exceptions in the law, which was applicable in the area, cannot be said to be at par to the regulation-making power conferred under para 5(2) of the said Rules. [Para 48][71-F-G]

2. 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 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 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. [Para 49][72-A-C]

3. Thus, 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. [Para 154][160-G-H]

4. 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. [Para 154][161-A-B] Does the power under Para 5(1) of the Fifth Schedule to the Constitution of India extend to subordinate legislation?

5. In substance, Rules 22 and 22A of A.P. State and Subordinate Service Rules, 1996 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. [Para 54][73E-F]

6. The rules framed under the proviso to Article 309 of the Constitution cannot be said to be the Act of Parliament or State legislature. 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 the Parliament 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 the opinion of this Court, it was not open to the Governor to issue the impugned G.O. No.3/2000. [Para 57][75-B-C]

7. 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. [Para 154][161-C]

Can the exercise of the power conferred in Para 5 of the Fifth Schedule override fundamental rights guaranteed under Part III?

8. 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 the opinion of this Court, 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. [Para 78][90-E-G]

9. Thus, 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. [Para 154][161-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?

10. The main question to be considered is whether there is any conflict between the Presidential Order and the G.O. Ms. No. 3 of 2000 issued 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 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 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. [Para 89][101-D-H; 102-A]

11. 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 Order. In opinion of this Court,

100 per cent reservation could not have been provided as that violates the Presidential Order. [Para 90][102-D]

12. Thus, in the 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. [Para 154][161-E]

Whether 100% reservation is permissible under the Constitution?

13. By providing 100 percent reservation to the scheduled tribes has deprived the scheduled castes and other backward classes also of their due representation. The concept of reservation is not proportionate but adequate, as held in Indra Sawhney. The action is thus unreasonable and arbitrary and violative of provisions of Articles 14, 15 and 16 of the Constitution of India. It also impinges upon the right of open category and scheduled tribes who have settled in the area after 26th January 1950. The total percentage of reservation provided for Scheduled Tribes in the State is 6%. By providing 100 percent reservation in the scheduled areas, the rights of the tribals, who are not residents of the scheduled areas, shall also be adversely affected. As per Presidential order under Article 371-D, they cannot stake their claim in other areas. The posts in other areas are to be reduced by making a 100% reservation in a particular area. [Para 127][141-E-G]

14. A reservation that is permissible by protective mode, by making it 100 percent would become discriminatory and impermissible. The opportunity of public employment cannot be denied unjustly to the incumbents, and it is not the prerogative of 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. Equality of opportunity and pursuit of choice under Article 51-A cannot be deprived of unjustly and arbitrarily. [Para 134][143-D]

15. This Court finds that G.O. Ms. No.3/2000 is wholly impermissible and cannot be said to be legally permissible and constitutionally valid. It can be said that action is not only irrational, but it violates the rights guaranteed under Part III of the Constitution and is not sustainable. [Para 135][143-F]

16. Thus, 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. [Para 154][161E-F] Whether the notification merely contemplates a classification under Article 16(1) and not reservation under Article 16(4)?

17. 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. [Para 140][154-C]

18. 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. [Para 141] [154-D]

19. Thus, 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. [Para 154][161-F]

Whether the conditions of eligibility that is the origin and cut-off date to avail the benefit of reservation in the notification is reasonable:

20. 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-a-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 Constitution of 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. 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. [Paras 147 and 154][157-D-E; 166-G]

Indra Sawhney & Ors. v. Union of India & Ors., (1992) Suppl. 3 SCC 217 : [1992] 2 Suppl. SCR 454 – followed.

Ram Kirpal Bhagat and Ors. v. The State of Bihar (1969)

3 SCC 471 : [1970] 3 SCR 233; Hota Venkata Surya Sivarama Sastry and Anr. v. State of Andhra Pradesh [1962] 2 SCR 535; Edwingson Bareh v. State of Assam and Ors. [1966] 2 SCR 770; Samatha v. State of A.P. & Ors., (1997) 8 SCC 191; Puranlal Lakhanpal v. President of India & Ors. AIR 1961 SC 1519 : [1962]

1 SCR 688; Bombay Dyeing & Mfg. Co. Ltd. (3) v. Bombay Environmental Action Group & Ors., (2006) 3 SCC 434 : [2006] 2 SCR 920; S.K. Gupta & Anr. v. K.P. Jain & Anr., (1979) 3 SCC 54 : [1979] 2 SCR 1184; S.R. Chaudhuri v. State of Punjab & Ors., (2001)

7 SCC 126 : [2001] 1 Suppl. SCR 621; Col. A.S. Iyer and Ors. v. V. Balasubramanyam, (1980) 1 SCC 634 : [1980] 1 SCR 1036; Ajay Hasia and Ors. v. Khalid Mujib Sehravardi and Ors., (1981) 1 SCC 722 : [1981]

2 SCR 79; E.P. Royappa v. State of Tamil Nadu & Anr., (1974) 4 SCC 3 : [1974] 2 SCR 348; Maneka Gandhi v. Union of India & Anr., (1978) 1 SCC 248 : [1978] 2 SCR 621; R.C. Poudyal v. Union of India & Ors., (1994) Suppl. 1 SCC 324 : [1993] 1 SCR 891; State of Sikkim v. Surendra Prasad Sharma & Ors., (1994) 5 SCC 282 : [1994] 5 SCR 563; Peerless General Finance and Investment Co. Ld. And Anr. v. Reserve Bank of India, (1992) 2 SCC 343 : [1992] 1 SCR 406; V. Jagannadha Rao and Ors. v. State of A.P. and Ors., (2001) 10 SCC

401 : [2001] 5 Suppl. SCR 179; S. Prakasha Rao and Anr. v. Commissioner of Commercial Taxes and Ors., (1990) 2 SCC 259 : [1990] 1 SCR 561; M.R. Balaji & Ors. v. State of Mysore & Ors., [1963] Supp 1 SCR 439; M. Nagaraj and Ors. v. Union of India and Ors., (2006) 8 SCC 212 : [2006] 7 Suppl. SCR 336 – relied on.

Jatindra v. Province of Bihar, (1949) FLJ 225; Rajasthan Housing Board v. New Pink City Nirman Sahkari Samiti Ltd. and Anr., (2015) 7 SCC 601 : [2015]

5 SCR 365; B.S. Yadav & Ors. v. State of Haryana & Ors., AIR 1981 SC 561 : [1981] 1 SCR 1024; Kesavananda Bharti v. State of Kerala, (1973) 4 SCC

225 : [1973] Suppl. SCR 1; Waman Rao and Ors. v. Union of India and Ors., (1981) 2 SCC 362 : [1981] 2 SCR 1; I.R. Coelho (Dead) by LRs. v. State of T.N., (2007) 2 SCC 1 : [2007] 1 SCR 706; Neelima Misra v. Harinder Kaur Paintal & Ors., (1990) 2 SCC 746 : [1990] 2 SCR 84; Smt. Parayankandiyal Eravath Kanapravan Kalliani Amma & Ors. v. K. Devi & Ors., AIR 1996 SC 1963 : [1996] 2 Suppl. SCR 1;

Chandavarkar S. R. Rao v. Ashalata S. Guram, (1986)

4 SCC 447 : [1986] 3 SCR 866; Jay Engineering Works Limited v. Industry Facilitation Council and Anr., (2006)

8 SCC 677 : [2006] 6 Suppl. SCR 189; Maharashtra Tubes Ltd. v. State Industrial & Investment Corporation of Maharashtra Ltd. and Anr., (1993) 2 SCC 144 : [1993] 1 SCR 340; Narasimha Rao v. State of A.P., (1969) 1 SCC 839 : [1970] 1 SCR 115; Sandeep and Ors. v. Union of India and Ors. (2016) 2 SCC 328 : [2015] 14 SCR 328; Dr. Fazal Ghafoor v. Principal, Osmania Medical College, Hyderabad and Ors., (1988)

4 SCC 532, N.T.R. University of Health Science, Vijayawada v. G. Babu Rajendra Prasad and Anr., (2003) 5 SCC 350 : [2003] 2 SCR 781; R.S. Raghunath v. State of Karnataka and Ors., [1991] Suppl. 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. The Secretary, Board of Revenue Trivandrum and Ors., [1964] 4 SCR 280, Dr. Fazal Ghafoor v. Principal, Osmania Medical College, Hyderabad and Ors., (1988) 4 SCC 532; Dr. C. Surekha v. Union of India, AIR 1989 SC 44 : (1988)

4 SCC 526; M.P. Oil Extraction & Anr. v. State of M.P. & Ors., (1997) 7 SCC 592 : [1997] 1 Suppl. SCR 671; Usha Mehta v. Government of Andhra Pradesh, John Vallamattom v. Union of India, (2003) 6 SCC 611 : [2003] 1 Suppl. SCR 638; General Manager,

Uttranchal Jal Sansthan v. Laxmi Devi, (2009) 7 SCC

205 : [2009] 9 SCR 791; State of West Bengal v. Debashish Mukherjee, AIR 2011 SC 3667 : [2011] 13 SCR 1077; Mohan Kumar Singhania & Ors. v. Union of India & Ors., (1992) Supp. 1 SCC 594 : [1991] 1 Suppl. SCR 46; State of Kerala v. N.M. Thomas, (1976)

2 SCC 310 :[1976] 1 SCR 906; K. Krishna Murthy (Dr.) & Ors. v. Union of India & Anr., (2010) 7 SCC

202 : [2010] 6 SCR 972; R. Chitralekha v. State of Mysore, AIR 1964 SC 1823 : [1964] 6 SCR 368; AIIMS Students Union v. A.I.I.M.S., JT 2001 (7) SC 12; Lingappa Pochanna Appelwar & Ors. v. State of Maharashtra & Ors. (1985) 1 SCC 479 : [1985] 2 SCR 224; Barium Chemicals v. Company Law Board AIR 1967 SC 295 : [1966] Suppl. SCR 311; Jarnail Singh & Ors. v. Lachhmi Narain Gupta & Ors., (2018) 10 SCC 396 : [2018] 10 SCR 663 – referred to.