SATYAJIT KUMAR & ORS. versus THE STATE OF JHARKHAND & ORS. on 2 August 2022

[2022] 12 S.C.R. 873

SATYAJIT KUMAR & ORS.

v.

THE STATE OF JHARKHAND & ORS.

(Civil Appeal No. 4038 of 2022)

AUGUST 02, 2022

[M. R. SHAH AND B. V. NAGARATHNA, JJ.]

Constitution of India – Para 5(1) of Fifth Schedule; Articles14, 13(2), 15, 16(2), (3), 35(a-i) – Whether in exercise of powersconferred under paragraph 5(1) of the Fifth Schedule to theConstitution, the Governor can make provisions for 100%reservation in the scheduled Areas/Districts – Held: Non-obstanteclause contained in para 5(1) of the Fifth Schedule of theConstitution shall be read with respect to power of the Governor tosuspend and/or modify the law made by the Parliament despiteArticles 244 and 245 of the Constitution of India – It cannot beread as conferring upon the Governor absolute power and/orunfettered power, notwithstanding the provisions contained in PartIII of the Constitution – In the present case, the impugned Order/Notification providing 100% reservation for the local residents ofconcerned Scheduled Districts/ Areas is beyond the scope and ambitof powers conferred upon the Governor u/para 5(1) of the FifthSchedule of the Constitution – 100% reservation is violative ofArt.16(2) affecting rights of the other candidates/citizens of non-scheduled areas/Districts guaranteed under Part III of theConstitution of India – No error committed by High Court in holdingthe impugned Notification as unconstitutional and ultra vires toparagraph 5(1) of the Fifth Schedule and also Articles 14, 13(2),15 and 16(2) – It is also violative of Articles 16(3) and 35(a-i) –However, on facts, instead of fresh/de novo recruitment process bysetting aside the appointments already made in the ScheduledDistricts/Areas, the State shall revise the merit list based on thealready published cut off obtained by the last selected candidatesin each TGT subject against the respective categories with respectto entire State – Respective candidates belonging to the non-Scheduled Areas and Scheduled Areas (Districts) be adjustedaccordingly on the basis of individual merit of the candidates –

AJharkhand Government (Recruitment of Teachers and Non-TeachingStaff in Secondary Schools & their Service and Condition) Rules,2015 – Service Law – Constitution of India – Article 142.

Constitution of India – Para 5(1) of Fifth Schedule; Article309 – Jharkhand Government (Recruitment of Teachers and Non-BTeaching 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 powerto modify the relevant Recruitment Rules framed u/Article 309 –Held: Exercise of powers by the Governor under para 5(1) of theFifth Schedule of the Constitution of India modifying RecruitmentCRules, 2015 which are framed u/Article which can be said to besubordinate legislation and cannot be said to be an Act or the Lawmade by the Parliament and / or State Legislature is beyond thescope and ambit of Governor’s power under para 5(1) of the FifthSchedule of the Constitution of India.DConstitution of India – Para 5(1) of Fifth Schedule – Powersconferred upon the Governor – Exercise of – Scope and ambit of –Discussed.

Conclusion

Constitution of India – Para 5 of Fifth Schedule, an exception– Held: Law made by the Parliament is supreme and shall prevailEand every State/State Legislature is bound by the law made by theParliament – However, paragraph 5 of the Fifth Schedule to theConstitution of India is an exception – Notwithstanding the aforesaidprovisions, giving supremacy to the law made by the Parliament,the Governor may direct that any particular Act of Parliament or ofFthe Legislature of the State shall not apply to a Scheduled Area orany part thereof in the State or shall apply to a Scheduled Area orany part thereof in the State subject to such exceptions andmodifications as he may specify in the notification – Thus, theexpression “notwithstanding anything in this Constitution” is relatedGto the Constitutional provisions regarding the supremacy of the lawmade by the Parliament or State Legislature.

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

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Partly allowing the appeals, the Court

HELD: 1.1 As per Article 246(1), notwithstanding anythingcontained in clauses (2) and (3), Parliament shall have exclusivepower to make laws with respect to any of the matters enumeratedin List I in the Seventh Schedule (Union List). As per Article246(2), notwithstanding anything in clause (3), Parliament, and,subject to clause (1), the Legislature of any State also shall havepower to make laws with respect to any of the matters enumeratedin List III in the Seventh Schedule (Concurrent List). As perArticle 254 of the Constitution of India, if any provision of lawmade by the Legislature of a State is repugnant to any provisionof a law made by Parliament which Parliament is competent toenact, or to any provision of an existing law with respect to oneof the matters enumerated in the Concurrent List, then, subjectto the provisions of clause (2), the law made by Parliament,whether passed before or after the law made by the Legislatureof such State, or, as the case may be, the existing law, shall prevailand the law made by the Legislature of the State shall, to theextent of the repugnancy, be void. Thus, as per the aforesaidConstitutional provisions, law made by the Parliament is supremeand shall prevail and every State/State Legislature is bound bythe law. However, paragraph 5 made of by the the Fifth Scheduleto the Constitution of India is an exception. Notwithstanding theaforesaid provisions, giving supremacy to the law made by theParliament, the Governor may direct that any particular Act ofParliament or of the Legislature of the State shall not apply to aScheduled Area or any part thereof in the State or shall apply to aScheduled Area or any part thereof in the State subject to suchexceptions and modifications as he may specify in the notification.Thus, the expression “notwithstanding anything in thisConstitution” is related to the Constitutional provisions regardingthe supremacy of the law made by the Parliament or StateLegislature. [Para 17.2][922-D-H; 923-A-D]

1.2 The non-obstante clause contained in para 5(1) of theFifth Schedule of the Constitution shall be read with respect topower of the Governor to suspend and/or modify the law made bythe Parliament despite Articles 244 and 245 of the Constitution A

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Aof India. It cannot be read as conferring upon the Governorabsolute power and/or unfettered power, notwithstanding theprovisions contained in Part III of the Constitution. Thereservation that is permissible by protective mode, by making it100 percent would become discriminatory and impermissible. Theopportunity of public employment cannot be denied unjustly toBthe incumbents, and it is not the prerogative of a few. The citizenshave equal rights, and the total exclusion of others by creatingan opportunity for one class is not contemplated by the foundingfathers of the Constitution of India. [Paras 18.5 and 19][926-D-F,G-H]CIndra Sawhney & Ors. v. Union of India & Ors. 1992Supp (3) SCC 217 : [1992] 2 Suppl. SCR 454 –followed.

1.3 Applying law laid down by the Constitution Bench ofthis Court in the case of Chebrolu Leela Prasad Rao, to the factsDof the case on hand, the impugned Order/ Notification No.5938and the Order No.5939 dated 14.07.2016 providing 100%reservation for the local residents of concerned ScheduledDistricts/ Areas only can be said to be (1) beyond the scope andambit of powers conferred upon the Governor under para 5(1) ofEthe Fifth Schedule of the Constitution of India; (2) 100%reservation provided for the local residents of the concernedScheduled Districts / Areas only would be violative of Article 16(2)of the Constitution of India and affecting rights of the othercandidates / citizens of non-scheduled areas / Districts guaranteedunder Part III of the Constitution of India; (3) the exercise ofFpowers by the Governor under para 5(1) of the Fifth Schedule ofthe Constitution of India modifying Recruitment Rules, 2015which are framed under Article 309 of the Constitution of Indiawhich can be said to be subordinate legislation and cannot besaid to be an Act or the Law made by the Parliament and / orGState Legislature is beyond the scope and ambit of Governor’spower under para 5(1) of the Fifth Schedule of the Constitutionof India. [Para 20][928-D-H; 929-A]

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

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

1.4 What is required to be considered is the ratio decidendiand law laid down by this Court. There is clear law laid down byConstitution Bench of this Court. The decision of the ConstitutionBench which is rendered after considering the relevantconstitutional provisions and a number of decisions of this Courtis as such binding on this Court. It cannot be said that the relevantConstitutional provisions and/or binding decisions of this Courthave not been dealt with and/or considered by this Court. TheConstitutional Bench decision of this Court in the case of ChebroluLeela Prasad Rao also cannot be said to be per incuriam ignoringand/or taking a contrary view than any of the binding decision ofthis 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 Benchdecision of this Court in the case of Chebrolu Leela Prasad Rao.There is no reason to take a different view than the view takenby the Constitution Bench of this court in the case of ChebroluLeela Prasad Rao. [Para 21][929-C-F]

1.5 It may be true that so far as basic education (at thelevel of primary section) is concerned, it may help student at theprimary level (while providing basic education) to be taught intheir own tribal language. But the same principle may not beapplicable when question is of providing education at higher levelviz. above 5th standard. Therefore, if the candidates belongingto other areas (non-Scheduled Areas/ Districts) are given anopportunity to impart education (who may be more meritoriousthan the candidates belonging to the Scheduled Areas / Districts)than it will be more beneficial to the students belonging to theScheduled Areas and their quality of the education shall certainlyimprove. The quality of education of the school-going childrencannot be compromised by giving 100% reservation in favour ofthe teachers of the same/some districts and prohibiting theappointment to more meritorious teachers. At this stage, it isrequired to be noted that even the impugned Order/Notificationdated 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 Constitutionof India also. The impugned Order/Notification making 100%

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Areservation for the local resident of the concerned ScheduledDistricts/Areas is violative of Article 16(2) of the Constitution ofIndia as it affects the fundamental rights guaranteed to thecandidate belonging to the non-Scheduled Areas guaranteedunder part III of the Constitution of India. As per Article 13 ofthe Constitution of India, the State shall not make any law whichBtakes away or abridges the rights conferred by this Part and anylaw made in contravention of Article 13(2) shall to the extent ofthe contravention, be void. Therefore, also impugned Notification/Order/Advertisement making 100% reservation for the localresident of the concerned Scheduled Areas / Districts shall beCultra vires Article 13 of the Constitution of India and shall bevoid. [Paras 22.1 and 23][930-H; 931-A-C]

1.6 Even under Article 16(3) of the Constitution of India, itis the Parliament alone, which is authorized to make any lawprescribing, in regard to a class or classes of employment orDappointment to an office under the Government of, or any localor other authority within, a State of Union Territory, anyrequirement as to residence within the State or Union territoryprior to such employment or appointment. As per Article 35 ofthe Constitution of India, notwithstanding anything contained inthe Constitution, the Parliament shall have and the LegislatureEof a State shall not have the power to make laws with respect toany of the matters which, under clause (3) of Article 16 may beprovided for law made by Parliament. Therefore, impugnedNotification/Order making 100% reservation for the local residentof the concerned Scheduled Area/Districts (reservation on theFbasis of resident) is ultra vires to Article 35 r/w Article 16(3) ofthe Constitution of India. [Para 24][931-F-H; 932-A-B]

1.7 Applying the law laid down by this Court in the case ofChebrolu Leela Prasad Rao and in view of the above discussionand for the reasons stated above, the High Court has notGcommitted any error in concluding and holding that theNotification No.5938 and Order No.5939 dated 14.7.2016 issuedby the State Government providing 100% reservation for thelocal residents of concerned Scheduled Districts/Areas as beingunconstitutional and ultra vires Articles 14, 13(2), 15 and 16(2)

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of the Constitution of India. It is rightly observed and held thatsaid Notification and Order would also violate Articles 16(3) and35(a-i) of the Constitution of India. The High Court has alsorightly observed and held that aforesaid Notification and Orderis ultra vires to paragraph 5(1) of the Fifth Schedule of theConstitution of India. This Court is in complete agreement withthe view taken by the High Court. Once the Notification/Orderdated 14.07.2016 are held to be ultra vires, as a necessaryconsequences, appointments made pursuant to suchunconstitutional Notification/Order shall have to be set aside andsuch appointments as such cannot be regularized. There is adistinction between illegal and irregular appointment and theformer cannot be regularized. [Para 25][932-B-D]

1.8 In the present case, impugned Notification / Order is ofthe year 2016. The TGT recruitment process was initiated videadvertisement dated 28.12.2016 as modified on 04.02.2017 andsame came to be challenged during the pendency of therecruitment process in the year 2017 itself. It is also required tobe noted that by order dated 21.2.2019 the Division Bench of theHigh Court directed that notice be published in the dailynewspapers having wide circulation about institution of the writpetition so that the person interested may intervene in the writpetition. Pursuant to such notice, several interlocutoryapplications/intervener applications came to be filed, which cameto be allowed by the High Court. Thereafter, by order dated18.09.2019, taking into consideration the question ofConstitutional importance involved in the matters, the DivisionBench of the High Court referred the matter to be decided by aLarger Bench. By the same order dated 18.09.2019, the HighCourt stayed the further implementation and operation of theimpugned Notification No.5938 and Order No.5939 dated14.7.2016, subject to the appointments already made, if any. Thus,from the aforesaid it can be seen that the original writ petitionersare always vigilant and diligent and approached the High Courtat the first available opportunity. Their valuable right forconsideration of their cases for appointment in the ScheduledDistricts / Areas have been taken away. They have beensuccessful before the High Court. Therefore, in the facts and AB

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Acircumstance of the case, the decision relied upon on behalf ofthe appellants to make impugned judgment and order passed bythe High Court prospectively shall not be applicable to the factsof the case on hand. In the facts and circumstances of the case,the prayer on behalf of the appellants herein to make the impugnedjudgment and order passed by the High Court applicableBprospectively, 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 – heldinapplicable.C

1.9 However, at the same time and in the facts andcircumstances of the case and more particularly, by quashing andsetting aside the appointments already made there is a likelihoodof more complication which would not be in the larger publicinterest. Hence, this is a fit case to mould the relief. Apart fromDthe fact that the appellants herein – selected candidates belongingto the Scheduled Districts/Areas are already working since lastabout three years, in case appointments already made are notprotected then thousands of schools in the State of Jharkhandwould be without teachers and the ultimate sufferers would beEthe children of tribal areas. In view of the impugned judgmentand order passed by the High Court, by which, the High Courthas held all the appointments made in Scheduled Districts/Areasillegal and has further directed to go for fresh recruitment, theState will have to undergo fresh recruitment process which maytake considerable time and, in the meantime, there shall beFvacancies and number of schools in the tribal areas shall be withoutteachers. Therefore, the Court has to strike a balance betweenthe rights of the original writ petitioners as well as persons/teachers already appointed (whose appointments are held to beillegal) and also the public interest. Hence, while moulding theGrelief, instead of initiating a fresh recruitment process, if directionsare issued for preparation of fresh selection list based on revisedmerit and based on already published cut off obtained by the lastselected candidate in each TGT subject against respectivecategories., it will meet ends of justice and striking the balancebetween the competing rights so that persons already appointedH

may not have to lose their employment/job and at the same timethe candidates belonging to the non-Scheduled Districts/Areasmay also get their opportunity for appointment as a teacher onmerits in the Scheduled Districts/Areas. No useful purpose willbe served to go in for fresh/de novo recruitment process asdirected 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 HighCourt declaring the impugned Notification/Order dated14.07.2016 as unconstitutional and ultra vires Articles 14, 16(2),16(3) and 35(a-i) of the Constitution of India is upheld. This Courtis in complete agreement with the view taken by the High Court.However, at the same time, the directions issued by the HighCourt in the impugned judgment and order while setting asideall the appointments made pursuant to the Notification / Orderdated 14.07.2016 and Advertisement No.21 of 2016 dated28.12.2016 as modified on 04.12.2017 and to go in for fresh/denovo recruitment process for the Scheduled Areas/Districts ishereby modified. It is now directed that instead of fresh/de novorecruitment process by setting aside the appointments alreadymade in the Scheduled Districts/Areas, the State shall revise themerit list based on the already published cut off obtained by thelast selected candidates in each TGT subject against therespective categories with respect to entire State and respectivecandidates belonging to the non-Scheduled Areas and ScheduledAreas (Districts) shall be adjusted accordingly on the basis ofindividual merit of the candidates. The present directions areissued considering the peculiar facts and circumstances of thecase and more particularly considering the fact that there arealready vacant posts of teachers in the State (in both Scheduledand non-Scheduled Area). If the appointments already made areset aside and fresh de novo recruitment process for such postsis initiated, a number of schools in the Scheduled Areas shall bewithout any teacher which may ultimately affect larger publicinterest and education of concerned children in the ScheduledAreas. Present direction is issued in exercise of powers underArticle 142 of the Constitution of India in the larger public interestof Scheduled Areas/Districts. [Paras 27 and 28][934-D-H; 935-A-H; 936-A]

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Secretary, State of Karnataka and Ors. v. Umadevi (3)and Ors. (2006) 4 SCC 1 : [2006] 3 SCR 953 – reliedon.

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) 3SCC 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 KumarBishwal & Ors. (1994) Supp 3 SCC 245 : [1994]2 Suppl. SCR 665; AVS Narasimha Rao and Ors. v. TheState of A.P. [1970] 1 SCR 115; Kripal Bhagat v. Stateof Bihar [1970] 3 SCR 233 Puranlal Lakhanpal v.President of India AIR 1961 SC 1519 : [1962] 1 SCR688; Kesavananda Bharati v. State of Kerala (1973) 4SCC 225 : [1973] Suppl. SCR 1; Dr. Jaishri LaxmanraoPatil 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 UttarPradesh (2018) 16 SCC 447; K Madhav Reddy v. Stateof 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) 3SCC 398 : [1985] 2 Suppl. SCR 131; J K Spinningand Weaving Mills Co. Ltd v. State of UP AIR 1961SC 1170 : [1961] 3 SCR 185; Anupal Singh v. Stateof UP (2020) 2 SCC 173 : [2019] 12 SCR 1071; Stateof 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; SATYAJIT KUMAR & ORS. v. THE STATE OF JHARKHAND &ORS.

Surajprakash Gupta and Ors. v. State of J & K andOrs. (2000) 7 SCC 561 : [2000] 3 SCR 807; R.S. Gargv. 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 Singhv. 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. Chaudhuriv. 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 ofTamil 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 InvestmentCo. Ltd v. Reserve Bank of India (1992) 2 SCC 343 :[1992] 1 SCR 406 – referred to.

Case Law Reference

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[2022] 12 S.C.R.

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 4038of 2022.

From the Judgment and Order dated 21.09.2020 of the High Courtof Jharkhand at Ranchi in Writ Petition (C) No.1387 of 2017.

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Civil Appeal Nos.4039, 4040, 4041, 4042, 4043, 4044, 4045, 4046,4047, 4048, 4049, 4050 and 4079 of 2022.

Vikas Singh, Rajeev Dhavan, R. Venkataramani, P.S. Patwalia,Ms. Vibha Datta Makhija, Kapil Sibal, Sunil Kumar, Arunabh Chowdhury,Gopal Sankaranarayanan, Ajit Kumar Sinha, Mrs. V. Mohana, ColinGonsalves, Pallav Shishodia, Ranjit Kumar, Sr. Advs., Prashant Shukla,Suyash Srivastava, Ms. Shreya Mishra, Praveen Gaur, Karan Mamagain,Prakhar Srivastava, Chitwan Singhal, Praveen Vivnesh, Ms. PratibhaShukla, Satyajeet Kumar, Ms. Pragya Baghel, Vishnu Sharma, KumarAnurag Singh, Kumar Abhishekh, Shashank, Ms. Pallavi Langar, MithileshKumar Singh, Mrs. Manju Singh, Tarun Verma, Raj Mani Mishra, KabirDixit, Amit Agrawal, Vigyaan Shah, Ms. Radhika Yadav, Akshit Gupta,Harinder Neel, Ms. Rohini Prasad, Puneet Jain, Vigyan Shah, Ms. ChristiJain, Ms. Shruti Singh, Akshit Gupta, Umang Mehta, Yogit Kamat,Kamalesh Sharma, Harender Neel, Pukhraj Chawla, Mann Arora, YashJoshi, Ms. Sarah Sharma, Ms. Pragya Sethi, Anubhav Kumar for M/s.Manoj Swarup And Co., Vikram Singh Kushwaha, Roopenshu PratapSingh, Vikas Gothwal, Surjeet Singh, Vishwa Pal Singh, D.D.Sharma,Sunil Kumar Pandey, Mohan Lal Sharma, K. Parameshwar, PriyankUpadhyay, Krishna Kumar Singh, Sahil Bhalaik, Ms. Shomila Bakshi,Govind Jee, Omanakuttan K. K., Prashant Bhushan, Ms. Alice Raj,Brajesh Pandey, Anilendra Pandey, Chetan Joshi, Siddharth Seem,Sandeep Kumar Dwivedi, Ms. Savitri Verma, Rakesh Mishra, RaviChandra Prakash, Purushottam Sharma Tripathy, Lalit Kr. Singh, VigyaanShah, Mukesh Kumar Singh, Ms. Vani Vyas for M/s Ravi Chandra D

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APrakash & Co., Hitesh Kumar Sharma, S.K. Rajora, Akhileshwar Jha,E. Vinay Kumar, Advs. for the appearing parties.

The Judgment of the Court was delivered by

M. R. SHAH, J.

B1.0. Feeling aggrieved and dissatisfied with the impugned commonjudgment and order dated 21.09.2020 passed in Writ Petition No.1387 of2017 and other allied writ petitions and connected applications, by which,the High Court has allowed said writ petitions and has observed, heldand declared that the Notification No.5938 and the Order No.5939 dated14.07.2016 issued by the State of Jharkhand and Advertisement No.21Cof 2016 dated 28.12.2016 modified by the Advertisement No.21 of 2016published on 04.12.2017, by the State Government through Departmentof Personnel, Administrative Reforms and Rajbhasha inviting applicationfor appointment to the posts of Trained Graduate Teacher in theGovernment Secondary Schools to the extent of making 100% reservationfor the local candidates / residents of Thirteen Scheduled Areas in theDState of Jharkhand as illegal, ultra vires and unconstitutional andconsequently has quashed the appointments of the Trained GraduateTeachers made pursuant to the aforesaid advertisement, in the ScheduledDistricts relating to the local residents of those Districts, the originalrespondents – candidates belonging to the Thirteen Scheduled DistrictsEhave preferred present appeals.

2.0. Civil Appeal No.4043 of 2022 has been preferred by thepetitioners who were not party before the High Court challenging theaction of the State Government in not appointing them. It is the case onbehalf of the petitioners that the State Government has misinterpretedFthe judgment and order passed by the High Court passed in Writ PetitionNo.1387 of 2017. It is their case that the dispute before the High Courtwas with regard to the appointment of the Trained Graduate Teachersand advertisement Notification No.21 of 2016. However, so far aspetitioners are concerned, according to them, they are eligible applicantsGof the advertisement nos.1 of 2017 and 2 of 2017 for the post of LowerDivisional Clerks (Collectorate cadre) – District Level Post PanchayatSecretary- District Level Posts and Lower Divisional Clerks- State LevelPost, State Stenographer – State Level Post and in no manner concernedwith the issue agitated before the High Court. It is the case on behalf ofthe petitioners that they are awaiting the final results with respect to theH

aforesaid posts and have also undergone document verification procedurecarried out by the Jharkhand Staff Selection Committee in the year 2019.

2.1. Civil Appeal No.4048 of 2022 has been preferred by the Stateof Jharkhand challenging the order passed by the High Court dated4.3.2022 passed in Contempt Case No. 109 of 2021. It is to be notedthat Civil Appeal No.4048 of 2022 is with respect to the candidatesbelonging to the Non-Scheduled Districts who earlier filed writ petitionsbefore the High Court and the High Court directed to issue appointmentsorders to the candidates belonging to the Non-Scheduled Districts. It isrequired to be noted that by the interim order passed by the High Courtfurther contempt proceedings before the High Court have been stayed.

2.2. Civil Appeal No.4050 of 2022 has been preferred by thecandidates belonging to the Scheduled Districts and who applied as aTrained Teacher pursuant to the aforesaid advertisement and who arenot appointed after interim order passed by the High Court dated18.09.2019.

3.0. Facts leading to the present appeals in a nutshell are as under:

3.1. Pursuant to the Presidential Notification dated 11.04.2007 13Districts in the State of Jharkhand had been declared as ScheduledAreas. That the said Notification had been issued in exercise of powersconferred by the sub-paragraph (2) of paragraph 6 of the Fifth Scheduleto the Constitution of India. Pursuant to the said Notification, followingDistricts in the State of Jharkhand had been declared as Scheduled Areas/ Districts.

1. Ranchi District.2.Lohardagga District.3.Gumla District.4.Simdega District.5.Latehar District.6.East-Singhbhum District.7.West-Singhbhum District.8.Saraikela- Kharsawan District.

9. Sahebganj District.

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A10.Dumka District.

11. Pakur District.

12. Jamtara District.

13. Palamu District- Rabda and Bakoriya Panchayats ofBSatbarwa Block.

14. Godda District- Sunderpahari and Boarijor Blocks.

(hereinafter referred to as the “Scheduled Areas”).

3.2. That the State Government issued “Jharkhand Government(Recruitment of Teachers and Non-Teaching Staff in Secondary SchoolsC& their Service and Condition) Rules, 2015 by means of which theconditions / qualifications for appointment of teachers had beenprescribed, vide Notification dated 1.3.2016.

That pursuant to the order passed by the High Court in Writ Petition(PIL) No. 4806 of 2016, vide Circular dated 18.04.2016 the StateDGovernment prescribed definition of “Local Resident of Jharkhand”. Asper the said Circular, the Local Resident of Jharkhand would be deemedsuch Indian Citizens who would fulfill any one condition out of thefollowing …….

“(i) .he would have been residing within the geographicalElimits of the State of Jharkhand and either his own name orname of his forefather would have been lying recorded inSurvey Khata. In the cases of landless, he would be identifiedby the concerning Gram Sabha which would be based onlanguage, culture & traditions prevailing in the State ofFJharkhand.

(ii) would have been residing within the geographical limitsof the State of Jharkhand for the past 30 years or more dueto any trade, employment and other reasons and would haveearned immovable property or such person has wife/husbandG/child and affirm commitment to stay in Jharkhand State.

(iii) would have been appointed & working officer/employeeunder the Government of State of Jharkhand / institutionsbeing run/recognized by the State Government, Corporationetc. Or has wife/husband /child and affirm commitment to stayin Jharkhand state.H

(iv) Officer/employee of the Government of India, working inthe State of Jharkhand or have 188 wife/husband /child andaffirm commitment to stay in Jharkhand state.

(v) Person appointed at any constitutional or statutory postsin the State of Jharkhand or have wife/husband /child andaffirm commitment to stay in Jharkhand state.

(vi) Such person who would have born in the State ofJharkhand and completed his whole education uptoMatriculation or its equivalent level from the recognizedinstitutions established in the state of Jharkhand & affirmcommitment to stay in Jharkhand state.”

3.3. That thereafter, the State Government came out withNotification No. 5938 and Order No. 5939 dated 14.7.2016 directingthat in Thirteen Scheduled Districts of the State, the local residents ofthe concerned Districts (Thirteen Scheduled Districts) only shall be eligibleto be appointed on the District Cadre Class III and Class IV posts, for aperiod of ten (10) years from the date of publication of the Notification.It appears that said order had been issued by the Governor of Jharkhandin exercise of powers conferred under sub-paragraph(1) of paragraph 5of the Fifth Schedule of the Constitution of India. In the order dated14.07.2016 it is observed as under:

“And whereas, the scheduled Area in the State arecharacterised by low Human Development Indices,backwardness, remoteness poverty and whereas the socialindicators of the Scheduled Areas are on an average, inferiorto the average of social indicators in the State due to uneventopography, lack of water resources, loss in canopy coverageof forest and uncontrolled rapid industrialization; And whereas, recognizing the factors identified above, theTribal Advisory Council of Jharkhand has recommendedissuing of a notification by the Governor for suspension ofeligibility conditions as enshrined in various appointment rulesfor the appointment of class 3 and class 4 posts at districtlevel for a period of 10 years in the 13 districts namely-Sahebganj, Pakur, (Dumka, Jamtara, Latehar, Ranchi, Khunti,Gumla, Lohardagga simdega, East Singhbhum, WestSinghbhum and Sraikela-kharsawan for appointment of cent- A

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Apercent District level class -3 and class-4 posts by the localresidents of the district concerned; And Whereas, the Governor of Jharkhand in order to improvethe quality of people in the Scheduled Areas, by providingadditional opportunities of employment, in favour of the localBresidents of Scheduled Areas.”

3.4. That thereafter, further order came to be published on11.11.2016 specifically making it clear that in compliance of NotificationNo.5938 dated 14.07.2016, local residents of concerned Districts onlyare deemed eligible for appointment in the vacant post of District- LevelCClass III and Class IV in 13 notified Districts out of 24 Districts of theState and appointment of people from other Districts/ other States is notpermissible in these Districts. Meaning thereby, it was made clear thatthe candidate belonging to the Non-Scheduled Districts cannot participatein the process of selection in the Scheduled Districts.

D3.5. That pursuant to the advertisement no. 21 of 2016 publishedon 28.12.2016 as modified by advertisement dated 4.2.2017 which wasissued in pursuance of the Notification No.5938 dated 14.07.2016,applications were invited for filling up 17,784 Trained Graduate Teachersout of which 13,398 posts (75% posts of total advertised posts) were tobe filled up by direct recruitment and remaining 25% posts i.e., 4386Eposts were reserved for primary teachers. The said advertisement wasissued through Jharkhand State Staff Selection Commission (hereinafterreferred to as the “JSSC”). In the advertisement in para 5(iii), it wasstated that so far as vacancies in the Scheduled Districts and State areconcerned, only the local residents of those Scheduled Districts shall beFentitled to apply. As per the para 5(i) of the advertisement, a candidatecould apply against the vacancy in only one District of his / her choice.At this stage, it is required to be noted that in all 8423 posts wereadvertised for filling up the vacancies in the Thirteen Scheduled Districtsin the State, whereas 9149 posts were advertised for the remaining non-scheduled districts in the State.G

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3.6. Several candidates applied for the posts and undergone theselection process. The results were published and process ofappointments were initiated by the State Government. Candidatesbelonging to the Non-Scheduled Districts who were prevented makingapplication for the vacancy in the Scheduled Districts, preferred writH

petition before the High Court by way of present writ petition challengingthe constitutional validity of the Notification and order issued by theState Government bearing Notification No. 5938 and Order No.5939dated 14.07.2016, by which, only the local residents of the concernedScheduled Districts were made eligible for appointment on the DistrictCadre Class III and Class IV posts for a period of 10 years. The originalwrit petitioners- candidates belonging to the Non-Scheduled Candidatesalso challenged the subsequent Advertisement No.21 of 2016, as modifiedby the Advertisement No.21 of 2016, inviting applications for appointmentto the posts of Trained Graduate Teacher in the Government SecondarySchools more particularly, para 5(iii) of the said advertisement by which,it was stated that the so far as vacancies in the Scheduled Districts ofthe State are concerned, only the local residentsof those ScheduledDistricts shall be eligible to apply.

3.7. By order dated 21.2.2019 the Division Bench of the HighCourt directed that the notices be published in the Daily Newspaperhaving wide circulation about institutions of writ petitions so that theperson interested may intervene in the writ petitions. Pursuant to suchnotices, several interlocutory applications / intervener applications cameto be filed, which came to be allowed by the High Court.

Taking into consideration the question of Constitutional importanceinvolved in these matters, by order dated 18.09.2019 the Division Benchof the High Court referred the matter to be decided by the Larger Bench.By the same order dated 18.09.2019, the High Court stayed furtherimplementation and operation of the impugned Notification No.5938 andOrder No.5939 dated 14.7.2016, subject to the appointments alreadymade, if any.

3.8 It was the case on behalf of the original writ petitioners –candidates belonging to the Non-Scheduled Districts that the aforesaidNotification issued in exercise of powers conferred in para 5(i) of theFifth Schedule of the Constitution of India is violative of Articles 14 &16 of the Constitution of India. Article 13(2) of the Constitution of Indiawas also pressed into service. Heavy reliance was placed on Article16(2) of the Constitution of India. It was submitted on behalf of theoriginal writ petitioners that in the garb of the non-obstante clause inpara 5(i) of the Fifth Scheduled of the Constitution, the Governor cannotinfringe and / or affect fundamental rights guaranteed under Part III ofthe Constitution and that there cannot be any 100% reservation, so as to AB

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Amake only residents of a particular area to be eligible for appointment toa public post. Heavy reliance was placed on the decisions of this Courtin the case of Kailash Chand Sharma Vs. State of Rajasthan &Ors. reported in (2002) 6 SCC 562; A.V.S Narsimha Rao & OrsVs. State of Andhra Pradesh & Anr. reported in (1969) 1 SCC 839;Dr. Pradeep Jain & Ors Vs. Union of India & Ors. reported inB(1984) 3 SCC 654; Rajesh Kumar Gupta & Ors. Vs. State of UP& Ors. reported in (2005) 5 SCC 172; State of Orissa & Ors. Vs.Sudhir Kumar Bishwal & Ors. reported in 1994 Supp (3) SCC 245and Indra Sawhney & Ors. Vs. Union of India & Ors. reported in1992 Supp (3) SCC 217, in support of their submissions that thereCcannot be 100% reservation for the local residents and such 100%reservation for the local residents and / or reservations on the basis ofresidence shall be hit by Article 16 (3) of the Constitution of India. Onthe constitutional validity of the Notification making 100% reservationfor the local residents in exercise of powers under para 5 of the FifthSchedule of the Constitution of India, heavy reliance was placed onDrecent Constitutional Bench decision of this Court in the case ofChebrolu Leela Prasad Rao & Ors Vs. State of A.P. & Ors reportedin (2021) 11 SCC 401.

4.0. On the other hand, it was the case on behalf of the State aswell as successful candidates belonging to the Scheduled Districts thatEthe Notification making 100% reservation for local residents of theScheduled Areas was / is absolutely within the scope, ambit and powersof the Governor in exercise of para 5 of the Fifth Schedule to theConstitution of India.

4.1. It was submitted that for the upliftment of local residentsFbelonging to the Scheduled Areas / Districts such a reservation ispermissible. It was submitted that the object and purpose of declaringScheduled Districts / Areas under Fifth Schedule is to uplift and for thebetterment of local residents of the Scheduled Areas. It was alsocontended on behalf of the State and successful candidates belonging toGthe Scheduled Areas/ Districts that special powers under the FifthSchedule are not subject to restriction under Article 16 of the Constitutionof India. Heavy reliance was placed on the non-obstante clause. Itwas submitted that para 5(i) of the Fifth Schedule of the Constitution ofIndia begins with the words “notwithstanding contained anything in thisConstitution”. It was further submitted that even the Governor may byH

public notification direct that any particular Act of Parliament shall notapply to a Scheduled Area; powers conferred on the Governor withrespect to Scheduled Areas are special powers and therefore, suchpowers are not subject to any of the restrictions contained in Article 16and / or any other provisions of the Constitution of India.

5.0. By the impugned common judgment and order and followingthe decision of the Constitutional Bench of this Court in the case ofChebrolu Leela Prasad Rao (supra), the High Court has declaredthe aforesaid Notification and the aforesaid Advertisement unconstitutionaland / or ultra vires, to the extent making 100% reservation for the localresidents of the Scheduled Areas. By the impugned judgment and order,the High Court has also held that the Notification and the Order areviolative of Article 16(3) and 35(a) of the Constitution of India, as suchpowers are vested only in the Parliament and not with the StateLegislature. By the impugned common judgment and order, the HighCourt has also quashed para 5(iii) of the Advertisement No.21 of 2016published on 28.12.2016 as modified by the advertisement dated 4.2.2017to the extent it provided that as against the vacant posts of TrainedGraduate Teacher in the Scheduled Districts, only the local residents ofthose Scheduled District can apply. In the result, the High Court hasquashed all the appointments of the Trained Graduate Teachers madepursuant to the aforesaid advertisement, in the Scheduled Districts relatingto the local residents of those Districts only. That the High Court hasfurther directed that all the 8423 posts of Trained Graduate Teacher inthe Government Secondary Schools in the Scheduled Districts of theState of Jharkhand, be advertised afresh and fresh selection process beundertaken in accordance with law. The High Court also further clarifiedthat all those candidates who were eligible to apply in response to theAdvertisement No.21 of 2016, shall be entitled to apply in the freshselection process, irrespective of any barrier, if any, as to their age.

The High Court has also made it abundantly clear that by the ad-interim order dated 18.09.2019, selection process was never stayed bythe Court in the Non-Scheduled Districts and there was no stay forappointments on any post in the Non-Scheduled Districts. According tothe High Court by impugned common judgment and order has allowedall the writ petitions accordingly.

5.1. Feeling aggrieved and dissatisfied with the impugned commonjudgment and order passed by the High Court of Jharkhand declaring A

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ANotification No. 5938 and Order No.5939 dated 14.07.2016 asunconstitutional and ultra vires to Articles 14, 16(2), 16(3) and 35(a-i) ofthe Constitution of India and consequently quashing para 5(iii) of theAdvertisement No. 21 of 2016 published on 28.12.2016 as modified bythe Advertisement dated 4.2.2017 to the extent of providing 100%reservation for the local residents of the Thirteen Scheduled DistrictsBonly, selected candidates belonging to the Scheduled Areas – localresidents of Scheduled Areas / Districts have preferred the presentAppeals.

6.0. Dr. Rajeev Dhavan, Shri Vikas Singh, Shri R. Venkataramani,Ms. Vibha Datta Makhija, learned Senior Advocates have appeared onCbehalf of the successful candidates belonging to the Scheduled Areas.We have heard Shri Kapil Sibal and Shri Sunil Kumar learned SeniorAdvocates appearing on behalf of the State of Jharkhand. We haveheard Shri Ranjit Kumar and Shri Gopal Sankaranarayanan, learnedSenior Advocates appearing on behalf of the contesting respondents –Doriginal petitioners – candidates belonging to the Non-Scheduled Areas/ Districts. We have also heard Shri Ajit Kumar Sinha, Shri ColinGonsalves and Shri Pallav Shishodia, learned Senior Advocates appearingon behalf of the other respective parties/ interveners.

7.0. Shri R. Venkataramani, learned Senior Advocate appearingEon behalf of some of the successful candidates belonging to the ScheduledDistricts / Areas has vehemently submitted that while passing theimpugned common judgment and order the High Court has not properlyappreciated and considered the object and purpose of declaration of theScheduled Areas in exercise of powers conferred under Fifth Scheduleand the object and purpose conferring special powers to the GovernorFunder para 5 of the Fifth Schedule to the Constitution of India.

7.1. It is further submitted that the High Court has also not properlyappreciated and considered the reasons for which the Notification andthe order dated 14.07.2016 was issued by the Governor of State.

7.2. It is further submitted that the Notification and the order datedG14.07.2016 shows that the Scheduled Districts in the State of Jharkhandare characterized by low human development indices, backwardness,remoteness, poverty and they are on an average inferior to the socialindicators in the State due to uneven topography, lack of water resources,loss in canopy average of forest and uncontrolled rapid industrialization.HThat due to the aforesaid grounds and the reasons, the Notification had to be issued by the Governor for protecting the interest of the residentsof the Scheduled Districts.

7.3. Taking us to the Article 29, 38 and 46 of the Constitution ofIndia and reliance being placed on Article 244 of the Constitution ofIndia which deals with the administration of Scheduled Areas and TribalAreas to which Fifth Schedule of the Constitution applies, it is vehementlysubmitted that the said administration has to take special care of theinterests of minorities and the people belonging to the Scheduled Castes,Scheduled Tribes and the weaker sections of the society, and to protectthem from social injustice and all forms of exploitation. It is submittedthat therefore, Notification / order dated 14.07.2016 issued by theGovernor in exercise of powers conferred under para 5(i) of the FifthScheduled of the Constitution of India which was issued to protect theinterest of local residents of the Scheduled Areas and for their upliftment,ought not to have been held to be ultra vires and / or unconstitutional bythe High Court. It is submitted that the impugned judgment and orderpassed by the High Court has the effect of taking away special rightsconferred on the Governor, conferred under para 5 of the of the FifthSchedule of the Constitution of India.

7.4. It is further submitted that Article 16(2) of the Constitution ofIndia prohibits discrimination on the grounds “only” of religion, race,caste, sex, descent, place of birth, residence and these expressions arepreceded by the word “only” and followed by the expression “or any ofthem” which play a very important role. It is submitted by Shri R.Venkataramani, learned Senior Advocate appearing on behalf ofpetitioners that successful candidates belonged to the Scheduled Area,though it was the contention on behalf of the original petitioners thatdiscrimination is prohibited on the ground mentioned in Article 16(2) and16(3) and if any protective action is required to be taken under Articles29, 38 and 46 of the Constitution of India the same is taken on any ormore of those grounds, in combination with other factors and Article16(2) of the Constitution of India shall not be attracted, even if it resultsin some discrimination to the other set of citizens.

7.5 Shri R. Venkataramani, learned Senior Advocate appearingon behalf of petitioners has further submitted that Governor of the Stateis fully competent under para 5(i) of the Fifth Schedule of the Constitutionof India to issue notification making reservation in favour of the residentsof the Scheduled Districts in order to secure justice, social, economic A

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Aand political to the residents suffering variously in the backdrop of theconditions mentioned in the Notification. It is urged that under Article15(4) of the Constitution of India, the State is empowered to make specialprovisions for the advancement of any socially and educationallybackward classes of citizens or for Scheduled Castes and ScheduledTribes, as such there is no violation of Articles 14 & 16 of the ConstitutionBof India. It is further submitted by Shri R. Venkataramani, learned SeniorAdvocate that the Scheduled Area cannot be equated with the non-scheduled areas. It is submitted that taking into consideration variousfactors, it was found necessary to protect the interests of the residentsof the Scheduled Districts.C

7.6. It is submitted that it would be of immense benefit to theschool going children in the Scheduled Districts, if they are taught intheir own tribal language by the local teachers, rather than by outsiders,who may not be well conversant with the local language. It is urged thatorders under challenge before the High Court as such did not sufferDfrom any denial of equality of opportunity and / or discriminatory. Furtherthe order under challenge before the High Court only distributes equalityof opportunity in terms of felt needs of the Scheduled Areas of the State.Hence, there can be no objection to reasonable provisions being madeas regards Scheduled Areas. It is submitted that the Constitution permitsEdiscrimination, albeit on reasonable grounds.

7.7. It is further submitted that the scope of Article 16(3) is confinedto inter State borders and that it has no application to areas within aState. In this context, reliance is placed on the decision of this Court inthe case of AVS Narasimha Rao and Ors. Vs. The State of A.P.Freported in (1970) 1 SCR 115.

7.8. It is submitted that the Governor has the power under para 1of the Fifth Schedule to enact any measure in the interests of theScheduled Areas. No dichotomy between the powers under paras 1 and2 of the Fifth Schedule can be suggested. That they are only differentGfacets of the plenary powers of the Governor. It is submitted that thepowers conferred on the Governor under para 5(1) and (2) of the FifthSchedule are plenary and exclusive powers. It is submitted that thereforethe Governor can also stay the law made by the Parliament and hencethe said powers are not subject to restrictions under Article 16 of theConstitution of India.H

Shri R. Venkataramani, learned Senior Advocate appearing onbehalf of petitioners has further submitted that as such the decision ofthis Court in the case of Chebrolu Leela Prasad Rao (supra) is notapplicable at all to the facts of the case on hand. That in the case ofChebrolu Leela Prasad Rao (supra) there was 100% preference /reservation in favour of only of Scheduled Tribes of the respective localareas of Andhra Pradesh, where schools are located. It is submitted thatin the instant case there is no such reservation only in favour of theScheduled Tribes of the Scheduled Areas. He has pointed out the followingdistinguishing features in support of his submissions that the decision ofthis Court in the case of Chebrolu Leela Prasad Rao (supra) shallnot be made applicable to the present cases.

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I.All candidates whether in Scheduled or non-ScheduledAreas can apply only in the District.

II.Only Class III and IV posts at the District Level included.In the context of fitness of transfers of employees, generallyDthis Court has observed that Class III and Class IV postsstand on a separate footing.

III.All candidates within the districts, whether SC/ST/BC orOBC, General can apply.

IV.The provisions were experimental i.e., to last only for 10years. (legislative experiments in Socio-economic matterswill receive judicial deference.

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7.9. Relying upon the decisions of this Court in the case of RamKripal Bhagat Vs. State of Bihar reported in (1970) 3 SCR 233 andin the case of Puranlal Lakhanpal Vs. President of India reported inAIR 1961 SC 1519, it is prayed that there is need for reconsiderationof the decision in the case of Chebrolu Leela Prasad Rao (supra).

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7.10. It is further submitted that in the present case, the Notificationissued by the Governor, impugned before the High Court are not hit byArticles 14 and 16 of the Constitution of India and as such do not fallwithin the scope of the judgment of this Court in the case of ChebroluLeela Prasad Rao (supra). It is submitted that the notifications can betraced both to Article 16(3) and the Fifth Schedule of the Constitution. Itis further submitted that under the Fifth Schedule the Governor is placedat par with the parliament and the State legislature, and the powerexercisable thereunder is plenary legislative power, and not subordinate G

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Ato any other legislative power. The power of the Governor not to apply aparliamentary law to a Scheduled Area would place her/ him at par withthe power of the Parliament available under Article 16(3) of theConstitution.

7.11. It is further submitted that that the Governor can do whatBthe Parliament can do under Article 16(3) of the Constitution, and thusenact in respect of requirement of residence, as a measure of takingcare of the interests of schools in scheduled areas. It is further submittedthat since Article 16(3) is an exception to Article 16(1) any reasonableprovision as regards residence requirement will be saved. It does notmatter that the law is made either by Parliament or the Governor. TheCpower of the Governor not to apply a parliamentary law includes thepower to do what the parliament can otherwise do.

7.12. It is further submitted that it is open to treat the notificationsnot as the amending instruments of the Rules made by the State ofJharkhand under Article 309 relating to appointment of teaching staff. ItDis submitted that in the case of Chebrolu Leela Prasad Rao (supra)answering question 2(b) raised therein it was opined that since Rulesmade under Article 309 are not Parliamentary or State law they cannotbe amended under para 5 of the Fifth Schedule.

7.13. It is further submitted that Fifth Schedule is a ConstitutionEwithin the constitution, (See Kesavananda Bharati Vs. State of Kerala(1973) 4 SCC 225) which suggests that the paramount interest of thescheduled areas and their development in ways that would suit the areas(for instance lands, forests, mineral wealth, etc. and the need to ensureagainst exploitation) will always inform the Governor in the exercise ofFpowers under the Fifth Schedule.

7.14. It is further submitted that the rules relating to appointmentthemselves provide that no candidate can apply to posts in more thanone district, and that the cadres are district level and not State levelcadres. The Notification only extends the same restriction of one districtGapplication to Scheduled Areas, keeping in view the interests of allScheduled Areas. There is no inter se discrimination amongst eligiblecandidates residing within the Scheduled Areas. All principles ofreservation to other categories of candidates are also applicable.

7.15. It is submitted that this court has saved domicile as areasonable principle as regards access to education and publicH

employment. The safeguards enacted in Article 371 D, for example, areone proximate illustration.

7.16. It is submitted that the impugned Notifications are notdiscriminatory. They do not look only at the place of residence as thefactor, relevant for appointment to schools in Scheduled Areas. Theytreat residence as one among other factors, namely the best way ofpromoting the interests of schools in Scheduled Areas as a prominent ordominant aspect. In the balancing of the interests of schools in ScheduledAreas and the right of all in all districts to be considered for appointmentas teachers, if the factor of residence within the scheduled district willtip in favour of the schools’ interest, then the emphasis in Article 16(2)on non-discrimination “‘only»’ on grounds of residence will yield to Article16(3).

7.17. It is submitted that Article 16(2) of the Constitution of Indiaprohibits discrimination on the grounds “only” of religion, race, caste,sex, descent, place of birth, residence, and these expressions are precededby the word “only” and followed by the expression “or any of them’,which are significant. In the present case, the cumulative factors of lowhuman development indices, backwardness, remoteness, poverty,inferiority in the social indicators in the State due to uneven topography,lack of water resources, loss in canopy average of forest and uncontrolledrapid industrialization have been taken into consideration.

7.18. It is further submitted that the Governor of the State is fullycompetent under paragraph 5(1) of Fifth Schedule of the Constitution ofIndia to issue the notification making reservation in favour of the residentsof the scheduled districts in order to secure justice- social, economic andpolitical, to the residents suffering variously in the backdrop of theconditions mentioned in the notification.

7.19. In the alternative, it is prayed that even if the Notification /Order impugned before the High Court are held to be unconstitutionaland / or ultra vires, in that case, as done by this Court in the case ofChebrolu Leela Prasad Rao (supra) the appointments already madein the Scheduled Areas be saved even by exercising power under Article142 of the Constitution of India. It is submitted that in many cases thosecandidates who have been appointed in the Scheduled Areas, were eitherworking in the non-Scheduled Areas or for getting appointment in theNon-Scheduled Areas they had left their jobs as they were gettingappointment in their own Districts. It is submitted that equities are also ABC

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Ain their favour. It is further submitted that even appointment of thepetitioners may not be disturbed when large number of posts are stilllying vacant in the State of Jharkhand and under the provision of Rightto Education Act, fundamental rights are available to the residents of thearea to have access to education and further it is duty cast upon theState to provide education.B

7.20. It is submitted that the High Court has erred in not protectingthe appointments already made by narrowly applying the decision in thecase of Chebrolu Leela Prasad Rao (supra). One of the factors forprotecting appointments made to public services in pursuance of opencompetition and fair opportunity, even though falling foul of any otherClegal factor, will be whether the appointments are vitiated by thecandidature’s fraud or benefit, and whether the appointees will lose onvarious counts. It is a matter of record that a large number of appointeeshave left their previous jobs. Even in the case of Chebrolu Leela PrasadRao (supra), persons appointed as recently as in 2020 have beenDprotected. Reliance is also placed on the judgement in Dr. JaishriLaxmanrao Patil Vs. Chief Minister 2021 SCC Online SC 362 forprotection granted by Court to the appointments already made.

8.0. Dr. Rajeev Dhavan, learned Senior Advocate appearing onbehalf of some of the petitioners – candidates belonging to the ScheduledEDistricts / Areas has elaborately made submission on the use of theword “only” under Article 15(1) and 16(2) of the Constitution of India.

8.1. It is submitted by Dr. Rajeev Dhavan, learned SeniorAdvocate appearing for the some of the petitioners that use of the word“only” in Article 15(1) and 16(2) of the Constitution of India would suggestFthat any of the prohibited classification “including caste” cannot be takenas the basis of the classification unless there is some wider constitutionalor public purpose and the classification has a nexus to and subservesthat purpose. Reliance is placed on the decision of this Court in the caseof Kailash Chandra Sharma (supra) (para 14) on the prohibitions inArticle 16(2). That it is observed in the said decision that prohibitoryGmandate under Article 16(2) is not attracted if the alleged discriminationis on grounds not merely related to residence but the factum of residenceis only taken into account in addition to other relevant factors.

8.2. Reliance is also placed on the decision of this Court in thecase of P. Rajendran Vs. State of Madras reported in (1968) 2 SCRH

786. It is submitted that as held by this Court in the aforesaid decision ifthe reservation in question, had been based only on caste and had nottaken into account the social and educational backwardness of the castein question, it would be violative of Article 15(1) but it must not beforgotten that a caste can also refer to a class of citizens and if the casteas a whole is socially and educationally backward, reservation can bemade in favour of such a caste on the ground that such a caste is sociallyand educationally backward class within the meaning of Article 15(4).

8.3. Dr. Rajeev Dhavan, learned Senior Advocate has also reliedupon the decisions of this Court in the case of N. Vasundhara Vs.State of Mysore reported in (1971) 2 SCC 22 and in the case ofJayshree Vs. State of Kerala reported in (1976) 3 SCC 730 in supportof his submission that for upliftment of local residents belonging to theSchedules Areas, the Governor can in exercise of powers conferredunder para 5 of the Fifth Schedule stay any of the Act made by theParliament and / or State and the same cannot be said to be affectingrights of the individual under Articles 16(2) and 16(3) of the Constitutionof India.

9.0. Shri Vikas Singh, learned Senior Advocate appearing on behalfof some of the original petitioners has made further submission in supportof the prayer to mould the relief to protect the services of the alreadyappointed candidates as they participated in a fair process of selection inwhich no malpractice was involved. It is submitted that even today, thereare more than 4000 posts available in the Scheduled Districts which arelying vacant. In support of his above prayer, it is urged that this Court, inthe case of Chebrolu Leela Prasad Rao (supra) had saved theappointments already made. It is submitted that this was because atleast 50% of the seats had been reserved for Scheduled Tribes onlywhich was struck down by this Court. It is submitted that applying thesaid observations in the present case also this Court while exercising itsextraordinary powers conferred under Article 142 of the Constitution ofIndia may protect the appointments made in the State of Jharkhand asabout 50% appointments of total advertised vacancies have been madetill now. It is submitted that if the appointments already made are setaside pursuant to the impugned common judgment and order passed bythe High Court, in that case, lakhs of children who go to the schoolwould be without teachers which would be contrary to the constitutionalmandate of Right to Education as provided under Article 21A of theConstitution of India.

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9.1. It is submitted that thousands of innocent petitioners / teacherswill be rendered unemployed as against 219 contesting respondents /interveners. That the paramount public interest demands that theappointments already made are not disturbed and the impugned judgmentis made to apply only prospectively.

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B9.2. It is submitted that as such the original petitioners took part inthe selection process, knowing fully well about the reservation made infavour of the local residents of the Scheduled Districts and thereafterhaving taken part in the selection process and having failed in gettingselected, they cannot now turn around and challenge the conditions laiddown in the advertisement.C

9.3. It is further submitted that it is not true that less meritoriouscandidates were given appointment and the rights of meritoriouscandidates has been hampered. That as a matter of fact, in all mostevery subject most of the appellants herein were much more meritoriousthan that of last selected / non selected / less meritorious candidates ofDNon-Scheduled Districts.

Making above submissions, it is prayed to mould the relief and todirect to apply the impugned common judgment and order passed by theHigh Court prospectively and / or at least to save appointments alreadyEmade.

10.0. Similar prayer to mould the relief and save the appointmentsalready made and to direct to apply impugned judgment and order passedby the High Court prospectively has been made by Shri P.S. Patwalia,learned Senior Advocate appearing on behalf of some of the appellants/Fteachers already appointed.

In the alternative, it is prayed that only those writ petitioners i.e.,about 219 candidates may be given opportunity to submit an option ofthe Districts where they would like to be appointed, which would bedone with reference to their merit against the vacant posts and withGrespect to rest of the vacant posts, the State may issue a freshadvertisement in accordance with law, with the age relaxation to thecandidate who had already participated in the 2016 selection. In supportof his above submission, reliance is placed on the decision of this Courtin the case of Hanuman Dutt Shukla Vs. State of Uttar Pradeshreported in (2018) 16 SCC 447.H

10.1. Shri Patwalia, learned Senior Advocate has also reiteratedwhat has been submitted on behalf of the other counsel on merits byassailing the impugned common judgment and order passed by the HighCourt and on the constitutional validity of the Notification / Orders issuedby the Governor / State Government providing reservation for candidatesbelonging to the local residents of the Scheduled Areas/ Districts.

11.0. Ms. Vibha Datta Makhija, learned Senior Advocate appearingon behalf of some of the appellants herein –candidates already appointedhas made following submissions in support of her prayer to mould therelief in favour of already appointed candidates.

I.That the appointments were made before the decision ofthis Court in the case of Chebrolu Leela Prasad Rao(supra). Thus, at the time of appointment of the petitionersherein, law in the State of Jharkhand was not clear andwas in a state of flux;

II.Even this Court has vide final order in the case of ChebroluLeela Prasad Rao (supra) has saved the appointments;

III.That all the appointed candidates- petitioners are appointedby a fair process of selection and they are all meritoriouscandidates;

IV.The Schools would be without teachers in case thepetitioners are ousted from service. In SLP (C)No.12490of 2020 about 1108 schools would be having no teachersand therefore, it may affect the education of the pupils.That the residents of the Scheduled Areas are also havingright to education which is a fundamental right as providedunder the Constitution of India. Therefore, if the petitionersand other already appointed teachers are removed, in thatcase, the schools would be without teachers and therefore,it may affect / hamper the education in the State ofJharkhand.

11.1. Ms. Makhija, learned Senior Advocate has also relied uponthe decisions of this Court in the case of Chebrolu Leela Prasad Rao(supra), Kailash Chand Sharma Vs. State of Rajasthan reported in(2002) 6 SCC 562, K Madhav Reddy Vs. State of A.P reported in(2014) 6 SCC 537, R.K. Sabharwal Vs. State of Punjab reported in(1995) 2 SCC 745 and Baburam Vs. CC Jacob reported in (1999) 3

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ASCC 362, in support of her prayer to direct to apply the impugnedjudgment and order passed by the High Court only prospectively.

12. While assailing the impugned judgment and order passed bythe High Court Shri Kapil Sibal, learned Senior Advocate and Shri SunilKumar, learned Senior Advocate appearing on behalf of the State ofBJharkhand have vehemently submitted that in the present case and inthe facts and circumstances of the case, High Court has committed agrave error in declaring the Notification / Order issued by the Governor/ State Government and the advertisement providing reservation for thelocal residents of Scheduled Area / Districts as unconstitutional and ultravires Articles 14, 16 and 35 of the Constitution of India.C

12.1. It is submitted on behalf of the State that there is a basicfallacy in the contention of the original petitioners that the impugnedNotification makes the District as the basis of classification. It is submittedthat as such a classification is made by the Constitution itself and thebasis is “Scheduled Area” as contemplated under Article 244 r/w FifthDSchedule of the Constitution of India. That the Scheduled Areas aresuch of those areas comprised of mostly tribal population within thedifferent States constituting the Union of India which the Constitution ofIndia treats as special in the matter of its governance. That the Presidentmay, by an order declare any such area as Scheduled Area under para 6Eof Fifth Schedule of the Constitution of India. Under sub-para 2 of para5 of Fifth Schedule, the President may direct that the whole or anyspecified part of a Scheduled Area shall cease to be a Scheduled Areaor a part of such an area, or even increase the area of a Scheduled Areain the State. Thus the President may declare an entire District as aScheduled Area or a part of the District as a Scheduled Area or evenFthe combination of two Districts as a Scheduled Area. It is submittedthat in the instant case on a consideration of the demography of thedifferent Districts in the State of Jharkhand, the President of India formedan opinion to declare the areas comprised in 13 Districts as a ScheduledArea and made the Scheduled Areas (State of Jharkhand) Order, 2007.GThat as time passes the President may declare that a portion of any ofthe 13 Districts may cease to be a Scheduled Area or even increase thearea of any of the declared Scheduled Areas by combining portions oftwo Districts. Therefore the impugned Notification and order makes theDistrict as the basis of classification. It is submitted that as such there isno challenge to the Scheduled Area (State of Jharkhand) Order, 2007 inHthese cases.

12.2. So far as the contention on behalf of the original writpetitioners that impugned Notification and Order purport to modify Rulesframed under the proviso to Article 309 which are neither an Act ofParliament nor an Act of State Legislature, it is submitted that as suchimpugned Notification carves out an exception by stating “Notwithstandinganything contained in these rules or any other Act, Order, Direction,Rules or Law for the time being in force” and hence would include anAct of Parliament like the “Right of Children to Free and CompulsoryEducation Act, 2009” which was enacted pursuant to Article 21-A ofthe Constitution of India and is applicable to Elementary Schools. It issubmitted that Section 23 of the said 2009 Act makes provision foreligibility for appointment of teachers in Elementary Schools. Hence theimpugned Notification would have to be read as carving out an exception/ modification to an Act of the Parliament i.e., Section 23 of the said2009 Act and same cannot be faulted with.

12.3. It is submitted that the impugned Notification and the Rulesappended thereto which are being excepted / modified, are both expressedto have been made by “The Order of the Governor” and authenticatedin the manner prescribed under Article 166(2) of the Constitution ofIndia. That the source of power to issue the impugned Notification canbe traced to para 5(1) of Schedule V as also proviso to Article 309 of theConstitution of India. It is submitted that the omission to mention “readwith proviso to Article 309 of the Constitution” after ‘in exercise ofpowers conferred by the provision of sub-para (1) of para 5 of the FifthSchedule ...” in the impugned Notification shall not affect / invalidatethe amendment to the Rules framed under the proviso to Article 309 ofthe Constitution of India. That in the case of Union of India and Anr.Vs. Tulsiram Patel reported in (1985) 3 SCC 398 (para 126) it isobserved that the source of power exists by reading together twoprovisions, whether statutory or constitutional and the order refers toonly one of them but the validity of the order should be upheld by construingit as an order passed under both the provisions.

12.4 Now so far as submission on behalf of the original writpetitioners whether the impugned Notification / Order are violative ofArticle 16 of the Constitution of India is concerned, it is vehementlysubmitted that the impugned Notification and Order are not “only” onthe ground of residence. It is submitted that social indicators in thescheduled areas being lesser as compared to the other areas of the A

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AState as also the other factors mentioned in the impugned Notification /Order which indicate that those residing therein are not equallycircumstanced as those residing in the Non- Scheduled Areas, there isno equality of opportunity. Hence, a duty is cast upon the State to minimizethe inequalities in income and endevour to eliminate inequalities in status,facilities and opportunities, not only amongst individuals but also amongstBgroup of people residing in different areas or engaged in differentvocations. It is submitted that the Directive Principle of State policycontained in Articles 38, 39, 39-A, 43 and 46 part IV of the Constitutionof India would apply in this case. It is submitted that the impugned orderNo.5939 dated 14.07.2016 was issued after noticing the Report of TribalCAdvisory Council and various factors of inequality between the ScheduledAreas and Non-Scheduled Area, it is stated therein that, inter alia, thatadditional opportunities of employment had to be provided to those residingin Scheduled Areas. That in the case of Kailash Chand Sharma (supra)(para 48) it is observed that “equalising unequals by taking note of theirhandicaps and limitation is not impermissible under the ConstitutionDprovided that it seeks to achieve the goals of promoting overall equality”.It is urged that in the present case it was expected that overall equalitywould be achieved by expression / modification of the Rules made byimpugned Notification and Order for a period of ten years. Therefore,as such, the impugned Notification and order cannot be said to be violativeEArticle 16 of the Constitution of India.

12.5. Now so far as submission on behalf of the original writpetitioners that the impugned Notification is violative of Article 14 of theConstitution of India is concerned, it is vehemently submitted by learnedSenior Advocate on behalf of the State that such argument based onFinfringement of Article 14 is fallacious. It is contended that while Article14 guarantees that the State shall not deny to any person equality beforelaw or the equal protection of laws, para 5(1) of Fifth Schedule startswith a non obstante clause which empowers the Governor to directthat any Central Law or State Law shall not apply to a Scheduled Areaor part thereof or may apply with such exceptions or modifications as heGmay direct. It is submitted that if the submission on behalf of the originalpetitioners that the impugned notification / order is in violation of Article14 is accepted, in that case, it would lead to an apparent conflict betweentwo constitutional provisions, viz. Article 14 and para 5(1) of FifthSchedule. It is submitted that this conflict can only be resolved by followingHthe well settled principle of harmonious construction that the special law shall prevail over the general. Reliance is placed on the decision of thisCourt in the case of J K Spinning and Weaving Mills Co. Ltd Vs.State of UP reported in AIR 1961 SC 1170 (para 9). It is submittedthat said provision for the Governance and development of the ScheduledAreas and the Tribals residing therein would never be subject to thegeneral provisions of the fundamental rights guaranteed under Article16.

12.6. In the alternative, it is prayed by the learned Senior Advocateappearing on behalf of the State not to disturb the appointments alreadymade earlier and to apply the impugned common judgment and orderpassed by the High Court prospectively so that it may not affect theeducation of the local residents of the Scheduled Areas. It is submittedthat if the impugned judgment and order passed by the High Court isimplemented and the appointments already made are also set aside asobserved and held by the High Court, in that case, the teachers will haveto be relieved and many schools in the Scheduled Areas would be withoutteachers and it may ultimately hamper education in the State and whichmay violate the fundamental rights which would be available to the localresidents of the Scheduled Area guaranteed under Article 21 A of theConstitution of India.

13. Present Appeals are vehemently opposed by Shri Ranjit Kumarand Shri Gopal Sankaranarayanan, learned Senior Advocates appearingon behalf of the contesting respondents – original petitioners – candidatesbelonging to the Non-Scheduled Areas / Districts.

13.1. Shri Ranjit Kumar, learned Senior Advocate appearing onbehalf of the original writ petitioners appearing in Civil Appeal No.4044of 2022 on behalf of Soni Kumari has submitted that the original writpetitioners (W.P No.1387 of 2017 before the High Court) approachedthe High Court challenging the State Government Notification No.5938and Order No.5939 dated 14.07.2016 whereby in Thirteen ScheduledDistricts in Jharkhand (out of total 24 Districts) only local residents ofThirteen Scheduled Districts were made eligible for appointment to ClassIII and IV posts for a period of 10 years as well as advertisement dated28.12.2016 as modified on 4.12.2017 and clause V (iii) which restrictedonly local residents / domicile of notified / Scheduled Districts alonebeing entitled to submit application against vacancies earmarked for thesaid Districts. It is submitted that due to the impugned Notification /order and the advertisement she was constrained to submit the application AB

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AForm for District Palamu – a Non-Scheduled District, though after hermarriage she is residing at Ranchi, a Scheduled District. It is submittedthat she had secured more marks than the cut off marks obtained by thelast selected candidate in her category and subject in the ScheduledDistricts and yet she was not selected. It is submitted that in this factualbackground the challenge to the impugned notification / order and theBadvancement are required to be appreciated.13.2. It is submitted by Shri Ranjit Kumar, learned Senior Advocatethat the issues which arises for consideration in the instant case are:

I.Whether the exercise of Governor’s power under ParagraphC5 of the Fifth Schedule is a “plenary power” or an “enablingpower” which must meet the test of basic feature/foundational principles and fundamental rights guaranteedunder Part III of the Constitution?

II.Whether the Governor is vested with the power to determineDeligibility based on residence (specifying 100% reservationfor domiciles in Schedule Districts) under Paragraph 5(1)of the Fifth Schedule?

III.Whether GOs No. 5938 & 5939 dated 14.07.2016 wherebyin the 13 Scheduled Districts in Jharkhand, Only localEresidents of the said districts were declared eligible forappointment to Class Ill and IV posts for a period of 10years are ultra vires Articles 14, 16(2)&(3) and 35 (a-i) ofthe Constitution?

13.3. In support of the submissions on behalf of the originalFpetitioners – candidates belonging to the Non-Scheduled Areas that theimpugned Notification / Order and the advertisement restricting the localresidents of the Scheduled Area only to apply for the post in the ScheduledArea are ultra vires to Articles 14 & 16 of the Constitution of India andit affects candidates belonging to the non-Scheduled Area guaranteedunder Part III of the Constitution of India, following submissions areGmade:

I.The power vested with the Governor under Article 244(1)read with the Fifth Schedule of the Constitution is not aplenary power but is an enabling power to meet the objectspecified therein i.e., “Administration of the ScheduledHAreas”. Paragraph 5(1) of the Fifth Schedule is one facet of this enabling power vested with the Governor. In termsof this paragraph, he may determine which Parliament orState legislation shall apply to the Scheduled Area, specifythe exceptions/modifications to the legislations so specifiedand also determine retrospective applicability of suchlegislation;

II.The power of the Governor under Para 5(1) of FifthSchedule does not extend to subordinate legislation; it iswith respect to an Act enacted in the sovereign function bythe Parliament or legislature of the State which can only bedealt with;

III.The Non obstante clause in Paragraph 5 of Fifth Schedulecannot be construed as taking away the provision outsidethe limitations on the amending power and has to beharmoniously construed consistent with the foundationalprinciples and the basic features of the Constitution;

IV.The Governor’s power under Para 5(1) of the Fifth Scheduleto the Constitution is subject to some restrictions, whichhave to be observed by the Parliament or the legislature ofthe State while making law and shall not affect fundamentalrights guaranteed under Part III of the Constitution; In support of above submissions, heavy reliance is placedon the decision of this Court in the case of Chebrolu LeelaPrasad Rao (supra) (Paras 102-104, 154(1)(c)).

13.4. It is further submitted by Shri Ranjit Kumar, learned SeniorAdvocate that residence local by itself cannot be a ground to accord anypreferential treatment for reservation in public employment by the StateGovernment since the same stands specifically barred by Article 16(1)and (2) of the Constitution. Reliance is placed on the decision of thisCourt in the case of State of Orissa & Ors Vs. Sudhir Kumar Bishwal& Ors reported in 1994 Supp (3) SCC 245 para 6 and 8.

13.5. It is further submitted that the Governor lacks subject matterjurisdiction to prescribe any requirement as to residence within the Statein light of Article 16(3) r/w Article 35 (a-i) of the Constitution whichmandate that power to create residential qualification for employment isexclusively conferred on Parliament and not the State Legislature which,by necessary corollary, shall exclude the State Executive (Governor)

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Awhose power is co-terminus with the State Legislature. It is submittedthat the Parliament alone is empowered to make the law prescribingresidential requirement within a State or Union Territory, as the casemay be, in relation to a class or classes of employment. It is submittedthat therefore, in the absence of parliamentary law, even the prescriptionof requirement as to residence within the State is impossible. In supportBof above submission, reliance is placed on the decision of this Court inthe case of AVS Narasimha Rao & Ors. Vs. State of Andhra Pradesh& Anr. reported in (1969) 1 SCC 839, Kailash Chand Sharma Vs.State of Rajasthan & Ors. reported in (2002) 6 SCC 562 (para 13-14) and Rajesh Kumar Gupta & Ors. Vs. State of UP & Ors. reportedCin (2005) 5 SCC 172 (para 16 &b 17).

13.6. It is further submitted that even otherwise impugned orders/ notification as sought to introduce 100% reservation in the ThirteenScheduled District in the State of Jharkhand whereby only local residentsof said Districts were declared eligible for appointment to Class III andDIV posts for the period of 10 years, are contrary to the law laid down bythis Court in the case of Indra Sawhney (supra) (para 788) as well asrecent decision of the Constitutional Bench of this Court in the case ofChebrolu Leela Prasad Rao (supra) (para 104) wherein it has beenheld that the outer limit of the reservations contemplated in Clause (4) ofArticle 16 of the Constitution of India should not normally exceed theElimit of 50%.

13.7. Now so far as justification by the State in invoking “sons ofthe soil” policy prescribing reservation or preference based on domicileor residence as already been decried by this Court in the case of Dr.Pradeep Jain Vs. UOI reported in (1984) 3 SCC 654 (para 5), it isFsubmitted that in the said decision it is observed and held that theParliament alone has been given the right to enact an exception to theban on discrimination based on residence. The impugned GovernmentNotifications No. 5938 & 5939 dated 14.07.2016 are ex facie violativeof Article 14 of the Constitution in as much as the same is not based onany intelligible differentia and does not have any rational nexus with theGobject and purpose it has set out to achieve i.e., selection of the mostcompetent teachers to impart quality education in secondary and highschools run by State Government and improvement of educationalstandard of the residents within the State. It is submitted that manydistricts notified as Scheduled Districts like East SinghbhumH(Jamshedpur) and Ranchi are at the top half of the Human Development Index (HDI) in Jharkhand whereas the Petitioner’s District Palamauhas the lowest HDI in the State, yet has been classified as a Non-Scheduled District which smacks of arbitrariness adopted by the Statein determination of Schedule and Non- Scheduled Districts.

13.8. It is further submitted that even the contention raised by theState Government and some of the learned counsel appearing on behalfof the candidates belonging to the Scheduled Areas that the impugnedNotification / Order were premised on the basis that candidates whoknew the local tribal language spoken in the concerned district would bein a better position to teach the students, is absolutely fallacious. It issubmitted that as such said contention has not been approved and / oraccepted by this Court in the case of Chebrolu Leela Prasad Rao(supra). That even otherwise TGT Recruitment Process is conductedfor selection of Trained Graduate Teachers to teach various subjects inSecondary Schools. It is submitted that thus excepting for the local triballanguage subject, all other subjects (viz. English, Hindi, Mathematics,Science, Social Studies) which are general in nature must be taught bythe most meritorious teachers so as to bring about an all-round developmentof the students as opposed to a substandard teacher whose contributionis negligible in academics.

It is submitted that Hindi is the official language in Jharkhand andis also the common medium of interaction among the various regions inthe State since over 21 languages are spoken in the State. That therefore,it stands to no reason that persons who do not know all 21 regionallanguages spoken in the State would be unable to impart education tothe students in those regions. It is submitted that any person who is wellversed in Hindi (Devnagari script) is more than competent to effectivelyimpart education to the students in all districts in the State without anyhindrance.

13.9. It is further submitted by Shri Ranjit Kumar, learned SeniorAdvocate that once impugned Notification / Order are held to beunconstitutional and ultra vires to Articles 14, 16 and 35 of the Constitutionof India, in that case, any appointment made violating the fundamentalrights of the original writ petitioners and appointment made pursuant tosuch unconstitutional provisions, the same have to be set aside. It issubmitted that therefore, the High Court has not committed any error inquashing the appointment of the original writ petitioner. In support of hisabove submission, following recent decisions are relied upon:

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AI.Anupal Singh Vs. State of UP reported in (2020) 2 SCC173.

II.State of UP and Ors. Vs. Anand Kumar Yadav and Ors.reported in (2018) 13 SCC 560.

III.Renu Vs. District & Sessions Judge reported in (2014)B15 SCC 731.

IV.State of MP Vs. Dharam Bir reported in (1998) 6 SCC165.

V.Syed Khalid Rizvi and Ors. Vs. Union of India andCOrs. reported in 1993 Supp. (3) SCC 575.

VI.Surajprakash Gupta and Ors. Vs. State of J & K andOrs. reported in (2000) 7 SCC 561.

VII.R.S. Garg Vs. State of UP and Ors. reported in (2006) 6SCC 430.D

VIII. Secretary, State of Karnataka and Ors. Vs. Umadevi(3) and Ors. reported in (2006) 4 SCC 1.

13.10 It is further submitted by Shri Ranjit Kumar, learned SeniorAdvocate appearing on behalf of the respective original writ petitioners– candidates belonging to the Non-Scheduled Districts has also requestedEto mould the relief under Article 142 of the Constitution of India bydirecting to prepare a revised merit list based on the already publishedcut off obtained by the last selected candidate in each TGT subjectagainst respective categories. It is submitted that this would entail thatno fresh or de novo recruitment process is initiated qua the advertisedFposts on the one hand, while on the other hand candidates from thepresent pool itself including the original writ petition – Soni Kumar and218 similarly situated candidates as well as even the present selectedcandidates will get an opportunity to be considered for appointment asTGT teachers. Reliance is placed on the decision of this Court in thecase of Rajesh Kumar Vs. State of Bihar reported in (2013) 4 SCCG690 and Ran Vijay Singh Vs. State of UP reported in (2018) 2 SCC357, in support of his request and prayer to mould the relief as prayed for.

14. Shri Gopal Sankaranarayanan, the learned Senior Advocatehas also made elaborate submissions in support of the impugned commonHjudgment and order.

15. In the State of Jharkhand 13 Districts were declared asScheduled Districts / Areas in exercise of powers conferred by sub-paragraph (2) of Paragraph 6 of the Fifth Schedule to the Constitution ofIndia. That the State Government has framed the Recruitment Rules,2015 prescribing conditions / qualifications for appointment of teachers.The said Rules are in exercise of powers under Article 309 of theConstitution of India. That vide Circular dated 18.04.2016 and pursuantto the order passed by the High Court, the State Government hasprescribed definition of “Local Resident of Jharkhand”. As per the saidcircular, Local Resident of Jharkhand would be deemed to be IndianCitizens who are fulfilling any one condition out of the following criteria:- “(i).he would have been residing within the geographicallimits of the State of Jharkhand and either his own name orname of his forefather would have been lying recorded inSurvey Khata. In the cases of landless, he would be identifiedby the concerning Gram Sabha which would be based onlanguage, culture & traditions prevailing in the State ofJharkhand.

(ii) would have been residing within the geographical limitsof the State of Jharkhand for the past 30 years or more dueto any trade, employment and other reasons and would haveearned immovable property or such person has wife/husband/child and affirm commitment to stay in Jharkhand State.

(iii) would have been appointed & working officer/employeeunder the Government of State of Jharkhand / institutionsbeing run/recognized by the State Government, Corporationetc. Or has wife/husband /child and affirm commitment to stayin Jharkhand state.

(iv) Officer/employee of the Government of India, working inthe State of Jharkhand or have 188 wife/husband /child andaffirm commitment to stay in Jharkhand state.

(v) Person appointed at any constitutional or statutory postsin the State of Jharkhand or have wife/husband /child andaffirm commitment to stay in Jharkhand state.

(vi) Such person who would have born in the State ofJharkhand and completed his whole education uptoMatriculation or its equivalent level from the recognized AB

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Ainstitutions established in the state of Jharkhand & affirmcommitment to stay in Jharkhand state.”

16. That thereafter, Governor of Jharkhand / State Governmentin exercise of powers under Paragraph 2(1) of the Fifth Schedule to theConstitution of India has issued the order / Notification dated 14.07.2016,Binter alia, providing that notwithstanding anything contained in anyAppointment / Recruitment Rules or any other Act, Order, Direction,Rules or Law for the time being in force only local residents of theScheduled Areas / Districts in the State shall be eligible for recruitmentto the vacancy arising in Class III and IV posts of the District Cadre invarious departments of the concerned Districts, for a period of 10 yearsCfrom the date of issue of the said Notification. The Order and Notification,validity of which have been questioned, are extracted hereinunder:

“Government of Jharkhand

Deptt. of Personnel, Administrative Reforms & Rajbhasha DOrder Ranchi, Dated 14.07.2016

No. 5939 / Whereas, under sub-paragraph (1) of paragraph5 of the Fifth Schedule to the Constitution of India, theGovernor may, by public notification direct that any particularAct of Parliament or of the Legislature of the State shall notapply to a Schedule Area or any part thereof in the Statesubject to such exceptions and modifications as specified inthe notification.

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And whereas, the Scheduled Area in the State are characterizedFby low Human Development Indices, backwardness, W.P.(C)No. 1387 of 2017 and analogous matters remoteness povertyand whereas the social indicators of the Scheduled Areas areon an average, inferior to the average of social indicators inthe State due to uneven topography, lack of water resources,Gloss in canopy coverage of forest and uncontrolled rapidindustrialization; And whereas, recognizing the factors identified above, theTribal Advisory Council of Jharkhand has recommendedissuing of a notification by the Governor for suspension ofeligibility conditions as enshrined in various appointment rules H

for the appointment of class 3 and class 4 posts at districtlevel for a period of 10 years in the 13 districts namely-Sahebganj, Pakur, Dumka, Jamtara, Latehar, Ranchi, Khunti,Gumla, Lohardagga, Simdega, East Singhbhum, WestSinghbhum and Sraikela-Kharsawan for appointment of cent-percent District level class-3 and class-4 posts by the localresidents of the district concerned; And whereas, the Governor of Jharkhand in order to improvethe quality of people in the Scheduled Areas, by providingadditional opportunities of employment, in favour of the localresidents of Scheduled Areas; The following notification shall come into effect from the dateof its publications in the official Gazette.”

“Government of Jharkhand

Deptt. of Personnel, Administrative Reforms & Rajbhasha Notification Ranchi, Dated 14.07.2016

No.14 / Sthaneeyata Neeti-14-01/2015/5938 In exercise ofpowers conferred by the provisions by sub-paragraph (1) ofparagraph 5 of the Fifth Schedule to the Constitution of India,the Governor of Jharkhand, hereby, directs that the provisionsregarding “eligibility of the appointment” mentioned in thevarious appointment rules as per list enclosed, Governmentmay amend from time to time, framed by the State Governmentunder article 309of the Constitution for the appointment tothe district cadre posts, shall be deemed to the modified andenforced up to the extent as specified, hereinafter, namely:-

“Notwithstanding anything contained in these rules or anyother Act, Order, Direction, Rules or Law for the time beingin force, only local residents of the districts namely -Sahebganj, Pakur, Dumka, Jamtara, Latehar, Ranchi,Khunti, Gumla, Lohardagga, Simdega, East Singhbhum,West Singhbhum and W.P.(C) No. 1387 of 2017 andanalogous matters Sraikela-Kharsawan, shall be eligiblefor recruitment to the vacancies arising in class-3 and class-4 posts of the district cadre in various department of the AB

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By order in the name of theGovernor of JharkhandSd/- Nidhi KharePrincipal Secretary to the B

Government

16.1. Thus, by the aforesaid impugned Order / Notification theGovernor of Jharkhand has directed that the provisions regarding“eligibility of the appointment” mentioned in the various AppointmentCRules, and as framed by the State Government under Article 309 of theConstitution 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 13Scheduled districts shall be reserved for the local residents of theDconcerned districts only. At this stage, it is required to be noted that bythe said Notification only the service Rules framed under Article 309 ofthe Constitution of India came to be modified and even the list attachedto the notification does not contain any Act of the Parliament or of theState Legislature. By the impugned judgment and order, the High Court,following and relying upon the decision of the Constitutional Bench ofEthis Court in the case of Chebrolu Leela Prasad Rao (supra) hasdeclared the aforesaid Order / Notification dated 14.07.2016 asunconstitutional and consequently has quashed appointments of the trainedgraduate teachers made pursuant to the Advertisement No. 21/2016published on 28th December, 2016 as modified by Advertisement datedF4.2.2017, in the Scheduled Districts relating to the local resident of thoseDistricts only. That thereafter, the High Court has directed that all the8423 posts of Trained Graduate Teacher in the Government SecondarySchools in the scheduled districts of the State of Jharkhand shall beadvertised afresh and a fresh selection process be undertaken inaccordance with law. The impugned judgment and order passed by theGHigh Court and the aforesaid directions is the subject matter of the presentappeals.

17. Having heard the learned counsel for the respective partiesand considering the impugned common judgment and order passed bythe High Court, the questions which are posed for consideration of thisHCourt are as under:

I.Whether in exercise of powers conferred under paragraph5(1) of the Fifth Schedule to the Constitution of India,whether, the Governor can provide for 100% reservationcontrary to Part III of the Constitution of India, moreparticularly, guaranteed under Article 16(1) and (2) ?

II.Whether in exercise of powers under paragraph 5(1) ofthe Fifth Schedule to the Constitution of India the Governorhas the power to modify the relevant Recruitment Rulesframed under Article 309 of the Constitution of India ?

III.What order ?

17.1. While considering the aforesaid questions / issues the relevantConstitutional provisions which would have a direct bearing are requiredto be referred to, which are as under: - “Article 13. Laws inconsistent with or in derogation of thefundamental rights- (1) All laws in force in the territory ofIndia immediately before the commencement of thisConstitution, in so far as they are inconsistent with theprovisions of this Part, shall, to the extent of such inconsistency,be void.

(2) The State shall not make any law which takes away orabridges the rights conferred by this Part and any law madein contravention of this clause shall, to the extent of thecontravention, 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 theterritory of India the force of law; (b) “laws in force” includes laws passed or made by aLegislature or other competent authority in the territory ofIndia before the commencement of this Constitution and notpreviously repealed, notwithstanding that any such law orany part thereof may not be then in operation either at all orin particular areas.

(4) Nothing in this article shall apply to any amendment ofthis Constitution made under article 368.

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Article 16. Equality of opportunity in matters of publicemployment - (1) There shall be equality of opportunity forall citizens in matters relating to employment or appointmentto 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, beineligible for, or discriminated against in respect of, anyemployment or office under the State.

(3) Nothing in this article shall prevent Parliament frommaking any law prescribing, in regard to a class or classes ofemployment or appointment to an office 1[under theGovernment of, or any local or other authority within, a Stateor Union territory, any requirement as to residence withinthat State or Union territory] prior to such employment orappointment.

(4) Nothing in this article shall prevent the State from makingany provision for the reservation of appointments or posts infavour of any backward class of citizens which, in the opinionof the State, is not adequately represented in the services underthe State.

(4A) Nothing in this article shall prevent the State from makingany provision for reservation 3[in matters of promotion, withconsequential seniority, to any class] or classes of posts inthe services under the State in favour of the Scheduled Castesand the Scheduled Tribes which, in the opinion of the State,are not adequately represented in the services under the State.

(4B) Nothing in this article shall prevent the State fromconsidering any unfilled vacancies of a year which arereserved for being filled up in that year in accordance withany provision for reservation made under clause (4) or clause(4A) as a separate class of vacancies to be filled up in anysucceeding year or years and such class of vacancies shallnot be considered together with the vacancies of the year inwhich they are being filled up for determining the ceiling offifty per cent. reservation on total number of vacancies ofthat year.

(5) Nothing in this article shall affect the operation of anylaw which provides that the incumbent of an office inconnection with the affairs of any religious or denominationalinstitution or any member of the governing body thereof shallbe a person professing a particular religion or belonging toa particular denomination.

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Article 46. Promotion of educational and economic interestsof Scheduled Castes, Scheduled Tribes and other weakersections - The State shall promote with special care theeducational and economic interests of the weaker sections ofthe people, and, in particular, of the Scheduled Castes andthe Scheduled Tribes, and shall protect them from socialinjustice and all forms of exploitation.

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Article 244. Administration of Scheduled Areas and TribalAreas - (1) The provisions of the Fifth Schedule shall applyto the administration and control of the Scheduled Areas andScheduled Tribes in any State 1*** other than 2[the States ofAssam3[,4[Meghalaya, Tripura and Mizoram].

(2) The provisions of the Sixth Schedule shall apply to theadministration of the tribal areas in 2[the States of Assam3[,5[Meghalaya, Tripura and Mizoram]

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Article 246. Subject-matter of laws made by Parliament andby the Legislatures of States - (1) Notwithstanding anythingin clauses (2) and (3), Parliament has exclusive power to makelaws with respect to any of the matters enumerated in List I inthe Seventh Schedule (in this Constitution referred to as the“Union List”).

(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 mattersenumerated in List III in the Seventh Schedule (in thisConstitution referred to as the “Concurrent List”).

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(3) Subject to clauses (1) and (2), the Legislature of any State1*** has exclusive power to make laws for such State or anypart thereof with respect to any of the matters enumerated inList II in the Seventh Schedule (in this Constitution referredto as the “State List”).

B

(4) Parliament has power to make laws with respect to anymatter for any part of the territory of India not included 2[ina State] notwithstanding that such matter is a matterenumerated in the State List.

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Article 254. Inconsistency between laws made by Parliamentand laws made by the Legislatures of States - (1) If anyprovision of a law made by the Legislature of a State isrepugnant to any provision of a law made by Parliament whichParliament is competent to enact, or to any provision of anDexisting law with respect to one of the matters enumerated inthe Concurrent List, then, subject to the provisions of clause(2), the law made by Parliament, whether passed before orafter the law made by the Legislature of such State, or, as thecase may be, the existing law, shall prevail and the law madeby the Legislature of the State shall, to the extent of theErepugnancy, be void.

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(2) Where a law made by the Legislature of a State 1*** withrespect to one of the matters enumerated in the ConcurrentList contains any provision repugnant to the provisions of anFearlier law made by Parliament or an existing law with respectto that matter, then, the law so made by the Legislature ofsuch State shall, if it has been reserved for the considerationof the President and has received his assent, prevail in thatState:

Provided that nothing in this clause shall prevent Parliamentfrom enacting at any time any law with respect to the samematter including a law adding to, amending, varying orrepealing the law so made by the Legislature of the State.

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309. Recruitment and conditions of service of persons servingthe Union or a State - Subject to the provisions of thisConstitution, Acts of the appropriate Legislature may regulatethe recruitment, and conditions of service of personsappointed, to public services and posts in connection withthe affairs of the Union or of any State:

Provided that it shall be competent for the President orsuch person as he may direct in the case of services and postsin connection with the affairs of the Union, and for theGovernor of a State or such person as he may direct in thecase of services and posts in connection with the affairs ofthe State, to make rules regulating the recruitment, and theconditions of service of persons appointed, to such servicesand posts until provision in that behalf is made by or underan Act of the appropriate Legislature under this article, andany rules so made shall have effect subject to the provisionsof any such Act Para 5 of the Fifth Schedule of the Constitution

5. Law applicable to Scheduled Areas.—(1) Notwithstandinganything in this Constitution, the Governor may by publicnotification direct that any particular Act of Parliament or ofthe Legislature of the State shall not apply to a ScheduledArea or any part thereof in the State or shall apply to aScheduled Area or any part thereof in the State subject tosuch exceptions and modifications as he may specify in thenotification and any direction given under this sub-paragraphmay be given so as to have retrospective effect.

(2) The Governor may make regulations for the peace andgood government of any area in a State which is for the timebeing a Scheduled Area. In particular and without prejudiceto the generality of the foregoing power, such regulationsmay—

(a) prohibit or restrict the transfer of land by or amongmembers of the Scheduled Tribes in such area; (b) regulate the allotment of land to members of theScheduled Tribes in such area; A

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(c) regulate the carrying on of business as money-lenderby persons who lend money to members of the ScheduledTribes in such area.

(3) In making any such regulation as is referred to in sub-paragraph (2) of this paragraph, the Governor1*** mayBrepeal or amend any Act of Parliament or of the Legislatureof the State or any existing law which is for the time beingapplicable to the area in question.

(4) All regulations made under this paragraph shall besubmitted forthwith to the President and, until assented to byChim, shall have no effect.

(5) No regulation shall be made under this paragraph unlessthe Governor making the regulation has, in the case wherethere is a Tribes Advisory Council for the State, consultedsuch Council.

D17.2. As per Article 246(1), notwithstanding anything contained inclauses (2) and (3), Parliament shall have exclusive power to make lawswith respect to any of the matters enumerated in List I in the SeventhSchedule (Union List). As per Article 246(2), notwithstanding anythingin clause (3), Parliament, and, subject to clause (1), the Legislature ofany State also shall have power to make laws with respect to any of theEmatters enumerated in List III in the Seventh Schedule (ConcurrentList). As per Article 254 of the Constitution of India, if any provision oflaw made by the Legislature of a State is repugnant to any provision ofa law made by Parliament which Parliament is competent to enact, or toany provision of an existing law with respect to one of the mattersFenumerated in the Concurrent List, then, subject to the provisions ofclause (2), the law made by Parliament, whether passed before or afterthe 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 theState shall, to the extent of the repugnancy, be void. Thus, as per theaforesaid Constitutional provisions, law made by the Parliament is supremeGand shall prevail and every State/State Legislature is bound by the lawmade by the Parliament. However, paragraph 5 of the Fifth Schedule tothe Constitution of India is an exception. Notwithstanding the aforesaidprovisions, giving supremacy to the law made by the Parliament, theGovernor may direct that any particular Act of Parliament or of theHLegislature 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 thereofin the State subject to such exceptions and modifications as he mayspecify in the notification. Thus, the expression “notwithstanding anythingin this Constitution” is related to the Constitutional provisions regardingthe supremacy of the law made by the Parliament or State Legislature.This aspect shall be discussed herein below while considering thesubmissions made on behalf of the appellants herein regarding paragraph5(1) of the Fifth Schedule to the Constitution of India.

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17.3. Therefore, the short question which is posed for theconsideration of this Court is, whether, in exercise of powers conferredunder paragraph 5(1) of the Fifth Schedule to the Constitution, theGovernor can make provisions for 100% reservation in the scheduledAreas / Districts which may affect the rights of the citizens guaranteedunder Part III, more particularly, under Article 16 (2) of the Constitutionof India? Whether such reservation would not be hit by Article 13 of theConstitution of India?

C

D

18. Identical question came to be considered by the ConstitutionalBench of this Court in the case of Chebrolu Leela Prasad Rao (supra).Before this Court the Governor of State of Andhra Pradesh issued GOin exercise of powers under paragraph 5(1) of the Schedule 5 of theConstitution of India, directing the posts of teachers in educationalinstitutions in the scheduled tribe areas shall be reserved for ScheduledTribes only notwithstanding anything contained in any other order or ruleor law in force. Several questions were referred to the Constitution Bench.The following questions were ultimately framed for consideration by theConstitutional Bench:

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(1) What is the scope of paragraph 5(1), Schedule V to theConstitution of India?

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(a) Does the provision empower the Governor to makea new law?

(b) Does the power extend to subordinate legislation?

(c) Can the exercise of the power conferred thereinGoverride fundamental rights guaranteed under PartIII?

(d) Does the exercise of such power override any parallelexercise of power by the President under Article371D?

H

A(2)Whether 100% reservation is permissible under theConstitution?

(3) Whether the notification merely contemplates aclassification under Article 16(1)and not reservation underArticle 16(4)?

B

(4) Whether the conditions of eligibility (i.e., origin and cut-offdate) to avail the benefit of reservation in the notificationare reasonable?”

18.1. Question No.1(a), (b), (c) and question no.3 referred to hereinabove are relevant for our purpose.C

18.2. After taking into consideration the relevant Constitutionalprovisions viz. Article 244, Fifth Schedule, so far as question No.1(a)viz. whether the provision empower the Governor to make a new law isconcerned, it is observed and held by the Constitution Bench that theDGovernor’s power to make new law is not available in view of the clearlanguage of Para 5(1) Fifth Schedule does not recognize or confer suchpower, but only power is not to apply the law or to apply it with exceptionsor modifications.(para 51)

18.3. Answering question no.1(b) viz. does the power extend toEsubordinate legislation, it is observed and held that Rules framed underthe proviso to Article 309 of the Constitution cannot be said to be an Actof Parliament or of State Legislature. It is observed and held that thepower of Governor under Para 5(1) of Schedule V of the Constitution isrestricted to modifying or not to apply, Acts of the Parliament or Legislatureof the State. Thus, Rules could not have been amended in the exerciseFof the powers conferred under Para 5(1) of the Schedule V. It is furtherobserved and held that the Rules made under the proviso to Article 309of the Constitution cannot be said to be an enactment by the StateLegislature. (paras 52 to 57).

18.4. While answering question 1(c) viz. can the exercise of theGpowers conferred under Para 5(1) of Fifth Schedule overridefundamental rights guaranteed under Part III, after considering thedecisions of this Court in the case of Kesavananda Bharati Vs. Stateof Kerala reported in (1973) 4 SCC 225; Waman Rao Vs. Union ofIndia 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

State of Punjab reported in (2001) 7 SCC 126; Ajay Hasia Vs. KhalidMujib Sehravadi reported in (1981) 1 SCC 722; E.P. Royappa Vs.State of Tamil Nadu reported in (1974) 2 SCC 3; Maneka GandhiVs. Union of India reported in (1978) 1 SCC 248; Ramana DayaramShetty Vs. International Airport Authority of India and Ors.reported in (1979) 3 SCC 489; Neelima Misra Vs. Harinder KaurPaintal reported in (1990) 2 SCC 746 and Peerless General Financeand Investment Co. Ltd Vs. Reserve Bank of India reported in(1992) 2 SCC 343, it is finally observed and held that the powerconferred on the Governor to deal with the scheduled areas is not meantto prevail over the Constitution. The power of the Governor is pari passuwith the legislative power of Parliament and the State. The legislativepower can be exercised by the Parliament or the State subject to theprovisions of Part III of the Constitution. Thereafter, it is ultimatelyobserved and held that the power of the Governor does not supersedethe fundamental rights guaranteed under Part III of the Constitution. Ithas to be exercised subject to Part III and other provisions of theConstitution. It is further observed and held that when Para 5 of theFifth Schedule confers power on the Governor, it is not meant to conferan arbitrary power. The Constitution can never aim to confer any arbitrarypower on the constitutional authorities. They are to be exercised in alegal and rational manner keeping in view the objectives and provisionsof the Constitution. The powers are not in derogation but in thefurtherance of the Constitutional aims and objectives. (para 78). Whileholding so, the Constitutional Bench also considered the effect of thenon-obstante clause used in para 5(1) of the Fifth Schedule of theConstitution. While considering the effect of the non-obstante clause, itis observed in para 69, 70, 74 and 75 as under:

“69. Para 5(1) of the Fifth Schedule of the Constitution startswith a non-obstante clause. What is the effect of the non -obstanteclause vis-a-vis the applicability to other provisions of theConstitution? Whether the provisions of Para 5(1) prevail over allother provisions of the Constitution? Whether the fundamentalrights in Part III of the Constitution are inapplicable and need notbe satisfied?

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

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the amending power and has to be harmoniously construedconsistent with the foundational principles and the basic featuresof the Constitution.

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B74. The non-obstante clause contained in Para 5(1) of the FifthSchedule of the Constitution means the Governor can exercisepower in spite of the provisions contained in Article 245of theConstitution, conferring the power upon Parliament to make lawsand the legislature of the State. The Parliament has the power toenact the law. It cannot be questioned on the ground that it wouldChave 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 beconsidered in the context and purpose for which it has been carvedDout.”

18.5. As observed herein above, we are also of the opinion thatthe non-obstante clause contained in para 5(1) of the Fifth Schedule ofthe Constitution shall be read with respect to power of the Governor tosuspend and/or modify the law made by the Parliament despite ArticlesE244 and 245 of the Constitution of India. It cannot be read as conferringupon the Governor absolute power and/or unfettered power,notwithstanding the provisions contained in Part III of the Constitution.

19. While answering question no.2 viz. whether 100% reservationFis permissible under the Constitution, after referring to and / or consideringvarious decisions of this Court on 100% reservation and after consideringArticles 14, 15 and 16 and other relevant Constitutional provisions andafter taking into consideration decision of this Court in the case of IndraSawhney (supra), it is ultimately observed and held that the reservationthat is permissible by protective mode, by making it 100 percent wouldGbecome discriminatory and impermissible. It is further observed and heldthat the opportunity of public employment cannot be denied unjustly tothe incumbents, and it is not the prerogative of a few. The citizens haveequal rights, and the total exclusion of others by creating an opportunityfor one class is not contemplated by the founding fathers of theConstitution of India.H

19.1. Thus, in the case of Chebrolu Leela Prasad Rao (supra),after considering the relevant Constitutional provisions in detail includingthe powers of the Governor conferred in para 5(1) of the Fifth Scheduleof the Constitution of India, it is ultimately observed and held as under:

“166. We answer the questions referred to us thus:

Question No.1: The Governor in the exercise of powers underPara 5(1), Fifth Schedule of the Constitution, can exercise thepowers concerning any particular Act of the Parliament or thelegislature of the State. The Governor can direct that such lawshall not apply to the Scheduled Areas or any part thereof. TheGovernor is empowered to apply such law to the Scheduled Areaor any part thereof in the State subject to such exceptions andmodifications as he may specify in the notification and can alsoissue 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 particularAct of Parliament or the Legislature of the State, shall not applyto a Scheduled Area or apply the same with exceptions andmodifications. The Governor can make a provision within theparameters of amendment/ modification of the Act of Parliamentor State legislature. The power to make new laws/regulations, isprovided in Para 5(2), Fifth Schedule of the Constitution for thepurpose mentioned therein, not under Para 5(1) of the FifthSchedule 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 subordinatelegislation, it is with respect to an Act enacted in the sovereignfunction by the Parliament or legislature of the State which canbe dealt with.

Question No.1(c): The Governor’s power under Para 5(1) of theFifth Schedule to the Constitution is subject to some restrictions,which have to be observed by the Parliament or the legislature ofthe State while making law and cannot override the fundamentalrights guaranteed under Part III of the Constitution.

Question No.1(d): In exercise of power under Para 5(1) of theFifth Schedule to the Constitution of India, the Governor cannot

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override the notification issued by the President in the exercise ofpowers under Article 371D.The power has to be exercisedharmoniously with such an order issued under Article 371D, notin conflict thereof.

Question No.2: G.O.Ms. No.3/2000 providing for 100 per centBreservation is not permissible under the Constitution, the outerlimit is 50 per cent as specified in Indra Sawhney (supra).

Question No.3: The notification in question cannot be treated asclassification made underArticle 16(1).Once the reservation hasbeen provided to Scheduled Tribes under Article 16(4), no suchpower can be exercised under Article 16(1).The notification isviolative of Articles 14 and 16(4) of the Constitution of India.

C

Question No.4 : The conditions of eligibility in the notification witha cut-off date i.e. 26-1-1950, to avail the benefits of reservation,is unreasonable and arbitrary one.”

D

20. Applying law laid down by the Constitution Bench of this Courtin the case of Chebrolu Leela Prasad Rao (supra), to the facts of thecase on hand, the impugned Order/ Notification No.5938 and the OrderNo.5939 dated 14.07.2016 providing 100% reservation for the localresidents of concerned Scheduled Districts/ Areas only can be said toEbe

(1) beyond the scope and ambit of powers conferred upon theGovernor under para 5(1) of the Fifth Schedule of theConstitution of India; F

(2)100% reservation provided for the local residents of theconcerned Scheduled Districts / Areas only would beviolative of Article 16(2) of the Constitution of India andaffecting rights of the other candidates / citizens of non-scheduled areas / Districts guaranteed under Part III ofthe Constitution of India; G

(3) the exercise of powers by the Governor under para 5(1) ofthe Fifth Schedule of the Constitution of India modifyingRecruitment Rules, 2015 which are framed under Article309 of the Constitution of India which can be said to beHsubordinate legislation and cannot be said to be an Act or the Law made by the Parliament and / or State Legislatureis beyond the scope and ambit of Governor’s power underpara 5(1) of the Fifth Schedule of the Constitution of India.

21. The submission on behalf of the appellants and State that thedecision of this Court in the case of Chebrolu Leela Prasad Rao(supra) shall not be applicable to the facts of the case on hand inasmuchas in the said case there was 100% reservation for Scheduled Tribecandidates which was held to be violating the rights of the other reservedcategory candidates also and that the decision of this Court in the caseof Chebrolu Leela Prasad Rao (supra) is required to be reconsideredis concerned has no substance. What is required to be considered is theratio decidendi and law laid down by this Court. There is clear law laiddown by Constitution Bench of this Court as noted above. The decisionof the Constitution Bench which is rendered after considering therelevant constitutional provisions and a number of decisions of thisCourt is as such binding on us. It cannot be said that the relevantConstitutional provisions and/or binding decisions of this Court havenot been dealt with and/or considered by this Court. The ConstitutionalBench decision of this Court in the case of Chebrolu Leela PrasadRao (supra) also cannot be said to be per incuriam ignoring and/ortaking a contrary view than any of the binding decision of this Court.As such and as observed herein above, we reiterate that we are boundby the law laid down by this Court, more particularly, a ConstitutionBench decision of this Court. We see no reason not to follow the bindingConstitution Bench decision of this Court in the case of ChebroluLeela Prasad Rao (supra). We see no reason to take a differentview than the view taken by the Constitution Bench of this court in thecase of Chebrolu Leela Prasad Rao (supra). We also see no reasonto refer the matter to a Larger Bench as prayed by some of the counselappearing on behalf of the appellants – candidates belonging to theScheduled Areas/ Districts.

22. One other submission which is made by the learned AdvocateGeneral appearing on behalf of the State before the High Court was thatin 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 Governorof the State for protecting the interests of the residents in the scheduleddistricts. That even otherwise, it would be of immense benefit to the A

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Aschool-going children in the scheduled districts, if they are taught in theirown tribal language by the local teachers, than the outsiders, who maynot be well conversant with the local language. At the outset, it is requiredto be noted that such submission was not pressed into service heavily byany of the counsel appearing on behalf of the appellants before the HighCourt. However, it is to be noted that in the case of Chebrolu LeelaBPrasad Rao (supra) the Constitution Bench of this Court also consideredthe very submission and negated the same by observing in para 130 and131 as under:

“130. No law mandates that only tribal teachers can teach inCthe scheduled areas; thus, the action defies the logic. Anotherreason given is the phenomenal absenteeism of teachers inschools. That could not have been a ground for providing100 percent reservation to the tribal teachers in the areas. Itis not the case that incumbents of other categories are notavailable in the areas. When a district is a unit for theDemployment, the ground applied for providing reservation forphenomenal absenteeism is irrelevant and could not haveformed the basis for providing 100 percent reservation. Theproblem of absenteeism could have been taken care of byproviding better facilities and other incentives.

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131. The reason assigned that reservation was to cover impetusin the scheduled areas in the field of education and tostrengthen educational infrastructure is also equally bereftof substance. By depriving opportunity to the others, it cannotbe said that any impetus could have been given to the causeFof students and effective education, and now that could havebeen strengthened. The provisions of 100 percent reservationare ignoring the merit. Thus, it would weaken the educationalinfrastructure and the merit and the standard of educationimparted in the schools. Educational development of studentscannot be made only by a particular class of teachersGappointed by providing reservation, ignoring merit in toto.The ideal approach would be that teachers are selected basedon merit.”

22.1. Even otherwise, it is to be noted that it may be true that sofar as basic education (at the level of primary section) is concerned, itH

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

23. At this stage, it is required to be noted that even the impugnedOrder/Notification dated 14.07.2016 and the advertisement providing100% reservations for local residents of concerned Scheduled Areas/Districts can be said to be violative of Article 13 of the Constitution ofIndia also. As observed herein above, the impugned Order/Notificationmaking 100% reservation for the local resident of the concernedScheduled Districts/Areas is violative of Article 16(2) of the Constitutionof India as it affects the fundamental rights guaranteed to the candidatebelonging to the non-Scheduled Areas guaranteed under part III of theConstitution of India. As per Article 13 of the Constitution of India, theState shall not make any law which takes away or abridges the rightsconferred by this Part and any law made in contravention of Article13(2) shall to the extent of the contravention, be void. Therefore, alsoimpugned Notification/Order/Advertisement making 100% reservationfor the local resident of the concerned Scheduled Areas / Districtsshall be ultra vires Article 13 of the Constitution of India and shall bevoid.

24. Even under Article 16(3) of the Constitution of India, it is theParliament alone, which is authorized to make any law prescribing, inregard to a class or classes of employment or appointment to an officeunder the Government of, or any local or other authority within, a Stateof Union Territory, any requirement as to residence within the State orUnion territory prior to such employment or appointment. As per Article35 of the Constitution of India, notwithstanding anything contained in theConstitution, the Parliament shall have and the Legislature of a Stateshall not have the power to make laws with respect to any of the matters AB

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Awhich, under clause (3) of Article 16 may be provided for law made byParliament. 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 35r/w Article 16(3) of the Constitution of India.

B

B25. Applying the law laid down by this Court in the case ofChebrolu Leela Prasad Rao (supra) and in view of the abovediscussion and for the reasons stated above, the High Court has notcommitted any error in concluding and holding that the NotificationNo.5938 and Order No.5939 dated 14.7.2016 issued by the StateGovernment providing 100% reservation for the local residents ofCconcerned Scheduled Districts/Areas as being unconstitutional and ultravires Articles 14, 13(2), 15 and 16(2) of the Constitution of India. It isrightly observed and held that said Notification and Order would alsoviolate Articles 16(3) and 35(a-i) of the Constitution of India. The HighCourt has also rightly observed and held that aforesaid Notification andDOrder is ultra vires to paragraph 5(1) of the Fifth Schedule of theConstitution of India. We are in complete agreement with the view takenby the High Court.

26. Now, so far as the prayer made on behalf of the respectiveappellants herein- candidates belonging to the Scheduled Districts / AreasEwho were already appointed and whose appointments are held to beillegal is concerned and their plea that the judgment of the High Courtmay be made applicable prospectively is concerned, the same may notbe accepted. Reliance is placed upon the order passed by this Court inthe case of Chebrolu Leela Prasad Rao (supra), by which, even thisCourt saved the appointments already made and the another decision ofFthis Court in the case of Kailash Chand Sharma (supra) is concerned,such a prayer is not to be accepted. Once the Notification/Order dated14.07.2016 are held to be ultra vires, as a necessary consequences,appointments made pursuant to such unconstitutional Notification/Ordershall have to be set aside and such appointments as such cannot beGregularized. As observed and held by this Court in the case of Secretary,State of Karnataka and Ors. Vs. Umadevi (supra), there is adistinction between illegal and irregular appointment and that the formercannot be regularized.

26.1. Now, so far as reliance placed upon the decision / orderHpassed by this Court in the case of Chebrolu Leela Prasad Rao (supra)

(para 167 to 169) is concerned, at the outset, it is required to be notedthat before this Court the appointments were made since 1986 onwardsand such appointments continued for a number of years and therefore,this Court saved the appointments already made which were continuedfor a number of years. While saving the appointments already made(which as such were found to be illegal), this Court specifically observedthat “in the peculiar facts and circumstances, the incumbents, who havebeen appointed, cannot be said to be at fault and they belong to theScheduled Tribes”. Even saving of the appointments was conditional asobserved in para 168.

26.2. Now, so far as reliance placed upon the decision of thisCourt in the case of Kailash Chand Sharma (supra) in support ofthe prayer to apply judgment of the High Court prospectively and/or tosave appointments already made is concerned, it is to be noted that inthe said judgment also in para 47, it is specifically observed by thisCourt that the Court has moulded the relief on a consideration of specialfacts and circumstances of the case by acting within the frameworkof powers vested in this Court under Article 142 of the Constitution. Itis further observed that even the judgment may not be treated as abinding precedent in any case that may arise in future. Therefore,once this Court has specifically observed that the said judgment maynot be treated as a binding precedent in any case that may arise infuture, the said judgment ought not to have been relied upon on behalfof the appellants.

26.3. In the present case, impugned Notification / Order is of theyear 2016. The TGT recruitment process was initiated vide advertisementdated 28.12.2016 as modified on 04.02.2017 and same came to bechallenged during the pendency of the recruitment process in the year2017 itself. It is also required to be noted that by order dated 21.2.2019the Division Bench of the High Court directed that notice be published inthe daily newspapers having wide circulation about institution of the writpetition so that the person interested may intervene in the writ petition.Pursuant to such notice, several interlocutory applications/intervenerapplications came to be filed, which came to be allowed by the HighCourt. Thereafter, by order dated 18.09.2019, taking into considerationthe question of Constitutional importance involved in the matters, theDivision Bench of the High Court referred the matter to be decided by aLarger Bench. By the same order dated 18.09.2019, the High Court AB

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Astayed the further implementation and operation of the impugnedNotification No.5938 and Order No.5939 dated 14.7.2016, subject tothe appointments already made, if any. Thus, from the aforesaid it canbe seen that the original writ petitioners are always vigilant and diligentand approached the High Court at the first available opportunity. Theirvaluable right for consideration of their cases for appointment in theBScheduled Districts / Areas have been taken away. They have beensuccessful before the High Court. Therefore, in the facts andcircumstance of the case, the decision relied upon on behalf of theappellants to make impugned judgment and order passed by the HighCourt prospectively shall not be applicable to the facts of the case onChand. In the facts and circumstances of the case, the prayer on behalfof the appellants herein to make the impugned judgment and order passedby the High Court applicable prospectively, deserves to be rejected andis accordingly rejected.

27. However, at the same time and in the facts and circumstancesDof the case and more particularly, by quashing and setting aside theappointments already made there is a likelihood of more complicationwhich would not be in the larger public interest. Hence, we are of theopinion that this is a fit case to mould the relief. Apart from the fact thatthe appellants herein – selected candidates belonging to the ScheduledEDistricts/Areas are already working since last about three years, in caseappointments already made are not protected then thousands of schoolsin the State of Jharkhand would be without teachers and the ultimatesufferers would be the children of tribal areas. In view of the impugnedjudgment and order passed by the High Court, by which, the High Courthas held all the appointments made in Scheduled Districts/Areas illegalFand has further directed to go for fresh recruitment, the State will haveto undergo fresh recruitment process which may take considerable timeand, in the meantime, there shall be vacancies and number of schools inthe tribal areas shall be without teachers. Therefore, the Court has tostrike a balance between the rights of the original writ petitioners as wellGas persons/teachers already appointed (whose appointments are held tobe illegal) and also the public interest. Hence, we are of the opinion thatwhile moulding the relief, instead of initiating a fresh recruitment process,if directions are issued for preparation of fresh selection list based onrevised merit and based on already published cut off obtained by the lastselected candidate in each TGT subject against respective categories.,H

it will meet ends of justice and striking the balance between the competingrights so that persons already appointed may not have to lose theiremployment/job and at the same time the candidates belonging to thenon-Scheduled Districts/Areas may also get their opportunity forappointment 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 forfresh/de novo recruitment process as directed by the High Court in theimpugned judgment and order.

28. In view of the above discussion and for the reasons statedabove, we uphold the common impugned judgment and order passed bythe High Court declaring the impugned Notification/Order dated14.07.2016 as unconstitutional and ultra vires Articles 14, 16(2), 16(3)and 35(a-i) of the Constitution of India. We are in complete agreementwith the view taken by the High Court. Present Appeals challenging theimpugned common judgment and order passed by the High Court arehereby dismissed to the aforesaid extent.

However, at the same time, the directions issued by the HighCourt in the impugned judgment and order while setting aside all theappointments made pursuant to the Notification / Order dated 14.07.2016and Advertisement No.21 of 2016 dated 28.12.2016 as modified on04.12.2017 and to go in for fresh/de novo recruitment process for theScheduled Areas/Districts is hereby modified. It is now directed thatinstead of fresh/de novo recruitment process by setting aside theappointments already made in the Scheduled Districts/Areas, the Stateshall revise the merit list based on the already published cut off obtainedby the last selected candidates in each TGT subject against the respectivecategories with respect to entire State and respective candidates belongingto the non-Scheduled Areas and Scheduled Areas (Districts) shall beadjusted accordingly on the basis of individual merit of the candidates.The present directions are issued considering the peculiar facts andcircumstances of the case and more particularly considering the factthat there are already vacant posts of teachers in the State (in bothScheduled and non-Scheduled Area). We are of the view that if theappointments already made are set aside and fresh de novo recruitmentprocess for such posts is initiated, a number of schools in the ScheduledAreas shall be without any teacher which may ultimately affect largerpublic interest and education of concerned children in the ScheduledAreas.

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APresent direction is issued in exercise of powers under Article142 of the Constitution of India in the larger public interest of ScheduledAreas/Districts.

Present appeals are partly allowed to the aforesaid extentmodifying the impugned common judgment and order passed by the HighBCourt as observed herein above.

In the facts and circumstances of the case, there shall be no orderas to costs.

Divya Pandey

C(Assisted by : Mahendra Yadav, LCRA)

Appeals partly allowed.

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