Satyajit Kumar & Ors. vs The State of Jharkhand & Ors.

309 – Jharkhand Government (Recruitment of Teachers and NonTeaching Staff in Secondary Schools & their Service and Condition) Rules, 2015 – Whether in exercise of powers under paragraph 5(1) of the Fifth Schedule to the Constitution, the Governor has the power to modify the relevant Recruitment Rules framed u/Article 309 – Held: 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 u/Article which can be said to be subordinate legislation and cannot be said to be an Act or the Law made by the Parliament and / or State Legislature is beyond the scope and ambit of Governor’s power under para 5(1) of the Fifth Schedule of the Constitution of India.

Constitution of India – Para 5(1) of Fifth Schedule – Powers conferred upon the Governor – Exercise of – Scope and ambit of – Discussed.

Constitution of India – Para 5 of Fifth Schedule, an exception – Held: 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 Legislature of the State shall not apply to a Scheduled 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 – 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.

Service Law– Illegal and irregular appointment appointments – Distinction between – Held: There is a distinction between illegal and irregular appointment and the former cannot be regularized. ORS.

Partly allowing the appeals, the Court

HELD: 1.1 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. However, paragraph 5 made of by the 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 Legislature of the State shall not apply to a Scheduled 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. 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. [Para 17.2][922-D-H; 923-A-D]

1.2 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 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. The 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 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. [Paras 18.5 and 19][926-D-F, G-H]

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

followed.

1.3 Applying law laid down by the Constitution Bench of this Court in the case of Chebrolu Leela Prasad Rao, 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 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; (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 the Law made by the Parliament and / or State Legislature is beyond the scope and ambit of Governor’s power under para 5(1) of the Fifth Schedule of the Constitution of India. [Para 20][928-D-H; 929-A]

Chebrolu Leela Prasad Rao & Ors v. State of A.P. & Ors. (2021) 11 SCC 401 – followed.

ORS.

1.4 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. 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 this Court. 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 also cannot be said to be per incuriam ignoring and/or taking a contrary view than any of the binding decision of this Court. This Court is bound by the law laid down by this Court, more particularly, a Constitution Bench decision of this Court. There is no reason not to follow the binding Constitution Bench decision of this Court in the case of Chebrolu Leela Prasad Rao. There is 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. [Para 21][929-C-F]

1.5 It may be true that so far as basic education (at the level of primary section) is concerned, it may help student at the primary level (while providing basic education) 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 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. 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. The impugned Order/Notification 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 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 void. [Paras 22.1 and 23][930-H; 931-A-C]

1.6 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 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 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. [Para 24][931-F-H; 932-A-B]

1.7 Applying the law laid down by this Court in the case of Chebrolu Leela Prasad Rao 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 concerned Scheduled Districts/Areas as being unconstitutional and ultra vires Articles 14, 13(2), 15 and 16(2) ORS.

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 Order is ultra vires to paragraph 5(1) of the Fifth Schedule of the Constitution of India. This Court is in complete agreement with the view taken by the High Court. 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. There is a distinction between illegal and irregular appointment and the former cannot be regularized. [Para 25][932-B-D]

1.8 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 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 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. [Para 26.3][933-F-H; 934-A-C]

Kailash Chand Sharma v. State of Rajasthan & Ors. (2002) 6 SCC 562 : [2002 1 Suppl. SCR 317 – held inapplicable.

1.9 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, this is a fit case to mould the relief. Apart from the fact that the appellants herein – selected candidates belonging to the Scheduled 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, 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., it will meet ends of justice and striking the balance between the competing rights so that persons already appointed ORS.

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. 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. In view of the above discussion and for the reasons stated above, the common impugned judgment and order passed by the High Court declaring the impugned Notification/Order dated 14.07.2016 as unconstitutional and ultra vires Articles 14, 16(2), 16(3) and 35(a-i) of the Constitution of India is upheld. This Court is in complete agreement with the view taken by the High Court. 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). 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. 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. [Paras 27 and 28][934-D-H; 935A-H; 936-A] Secretary, State of Karnataka and Ors. v. Umadevi (3) and Ors. (2006) 4 SCC 1 : [2006] 3 SCR 953 – relied on.

A.V.S Narsimha Rao & Ors v. State of Andhra Pradesh & Anr. (1969) 1 SCC 839 : [1970] 1 SCR 115; Dr. Pradeep Jain & Ors v. Union of India & Ors. (1984) 3 SCC 654 : [1984] 3 SCR 942; Rajesh Kumar Gupta & Ors. v. State of UP & Ors. (2005) 5 SCC 172 : [2005]

3 SCR 1171; State of Orissa & Ors. v. Sudhir Kumar Bishwal & Ors. (1994) Supp 3 SCC 245 : [1994]

2 Suppl. SCR 665; AVS Narasimha Rao and Ors. v. The State of A.P. [1970] 1 SCR 115; Kripal Bhagat v. State of Bihar [1970] 3 SCR 233 Puranlal Lakhanpal v. President of India AIR 1961 SC 1519 : [1962] 1 SCR 688; Kesavananda Bharati v. State of Kerala (1973) 4 SCC 225 : [1973] Suppl. SCR 1; Dr. Jaishri Laxmanrao Patil v. Chief Minister 2021 SCC Online SC 362 P. Rajendran v. State of Madras [1968] 2 SCR 786; N. Vasundhara v. State of Mysore (1971) 2 SCC 22; Jayshree v. State of Kerala (1976) 3 SCC 730 : [1977]

1 SCR 194; Hanuman Dutt Shukla v. State of Uttar Pradesh (2018) 16 SCC 447; K Madhav Reddy v. State of A.P (2014) 6 SCC 537 : [2014] 7 SCR 348; R.K. Sabharwal v. State of Punjab (1995) 2 SCC 745 : [1995]

2 SCR 35; Baburam V.CC Jacob (1999) 3 SCC 362; Union of India and Anr. v. Tulsiram Patel (1985) 3 SCC 398 : [1985] 2 Suppl. SCR 131; J K Spinning and Weaving Mills Co. Ltd v. State of UP AIR 1961 SC 1170 : [1961] 3 SCR 185; Anupal Singh v. State of UP (2020) 2 SCC 173 : [2019] 12 SCR 1071; State of UP and Ors. v. Anand Kumar Yadav and Ors. (2018)

13 SCC 560 : [2017] 10 SCR 428; Renu v. District & Sessions Judge (2014) 15 SCC 731; State of MP v. Dharam Bir (1998) 6 SCC 165 : [1998] 3 SCR 511; Syed Khalid Rizvi and Ors. v. Union of India and Ors. 1993 Supp. (3) SCC 575 : [1992] 3 Suppl. SCR 180; ORS.

Surajprakash Gupta and Ors. v. State of J & K and Ors. (2000) 7 SCC 561 : [2000] 3 SCR 807; R.S. Garg v. State of UP and Ors. (2006) 6 SCC 430 : [2006]

4 Suppl. SCR 120; Rajesh Kumar v. State of Bihar (2013) 4 SCC 690 : [2013] 4 SCR 753; Ran Vijay Singh v. State of UP (2018) 2 SCC 357 : [2017] 12 SCR 95; Waman Rao v. Union of India (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; S.R. Chaudhuri v. State of Punjab (2001) 7 SCC 126 : [2001] 1 Suppl. SCR 621; Ajay Hasia V.Khalid Mujib Sehravadi (1981)

1 SCC 722 : [1981] 2 SCR 79; E.P. Royappa v. State of Tamil Nadu (1974) 2 SCC 3 : [1974] 2 SCR 348; Maneka Gandhi v. Union of India (1978) 1 SCC 248 : [1978] 2 SCR 621; Ramana Dayaram Shetty v.

International Airport Authority of India and Ors. (1979)

3 SCC 489 : [1979] 3 SCR 1014; Neelima Misra v. Harinder Kaur Paintal (1990) 2 SCC 746 : [1990]

2 SCR 84; Peerless General Finance and Investment Co. Ltd v. Reserve Bank of India (1992) 2 SCC 343 : [1992] 1 SCR 406 – referred to.