As per the case facts, appeals were filed challenging a High Court judgment that deemed a policy of 100% reservation for local residents in Scheduled Areas for teacher posts unconstitutional, ...
No Acts & Articles mentioned in this case
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 4038 OF 2022
Satyajit Kumar & Ors. …Appellant(s)
Versus
The State of Jharkhand & Ors. …Respondent(s)
With
CIVIL APPEAL NO. 4039 OF 2022
CIVIL APPEAL NO. 4040 OF 2022
CIVIL APPEAL NO. 4041 OF 2022
CIVIL APPEAL NO. 4042 OF 2022
CIVIL APPEAL NO. 4043 OF 2022
CIVIL APPEAL NO. 4044 OF 2022
CIVIL APPEAL NO. 4045 OF 2022
CIVIL APPEAL NO. 4046 OF 2022
CIVIL APPEAL NO. 4047 OF 2022
CIVIL APPEAL NO. 4048 OF 2022
CIVIL APPEAL NO. 4049 OF 2022
CIVIL APPEAL NO. 4050 OF 2022
CIVIL APPEAL NO. 4079 OF 2022
J U D G M E N T
M.R. SHAH, J.
1.0.Feeling aggrieved and dissatisfied with the impugned
common judgment and order dated 21.09.2020 passed
in Writ Petition No.1387 of 2017 and other allied writ
Page 1 of 107
petitions and connected applications, by which, the
High Court has allowed said writ petitions and has
observed, held and declared that the Notification
No.5938 and the Order No.5939 dated 14.07.2016
issued by the State of Jharkhand and Advertisement
No.21 of 2016 dated 28.12.2016 modified by the
Advertisement No.21 of 2016 published on
04.12.2017, by the State Government through
Department of Personnel, Administrative Reforms and
Rajbhasha inviting application for appointment to the
posts of Trained Graduate Teacher in the Government
Secondary Schools to the extent of making 100%
reservation for the local candidates / residents of
Thirteen Scheduled Areas in the State of Jharkhand as
illegal, ultra vires and unconstitutional and
consequently has quashed the appointments of the
Trained Graduate Teachers made pursuant to the
aforesaid advertisement, in the Scheduled Districts
relating to the local residents of those Districts, the
original respondents – candidates belonging to the
Thirteen Scheduled Districts have preferred present
Page 2 of 107
appeals.
2.0.Civil Appeal No.4043 of 2022 has been preferred by
the petitioners who were not party before the High
Court challenging the action of the State Government
in not appointing them. It is the case on behalf of the
petitioners that the State Government has
misinterpreted the judgment and order passed by the
High Court passed in Writ Petition No.1387 of 2017. It
is their case that the dispute before the High Court
was with regard to the appointment of the Trained
Graduate Teachers and advertisement Notification
No.21 of 2016. However, so far as petitioners are
concerned, according to them, they are eligible
applicants of the advertisement nos.1 of 2017 and 2 of
2017 for the post of Lower Divisional Clerks
(Collectorate cadre) – District Level Post Panchayat
Secretary District Level Posts and Lower Divisional
Clerks State Level Post, State Stenographer – State
Level Post and in no manner concerned with the issue
agitated before the High Court. It is the case on behalf
Page 3 of 107
of the petitioners that they are awaiting the final
results with respect to the aforesaid posts and have
also undergone document verification procedure
carried out by the Jharkhand Staff Selection
Committee in the year 2019.
2.1.Civil Appeal No.4048 of 2022 has been preferred by
the State of Jharkhand challenging the order passed
by the High Court dated 4.3.2022 passed in Contempt
Case No. 109 of 2021. It is to be noted that Civil
Appeal No.4048 of 2022 is with respect to the
candidates belonging to the NonScheduled Districts
who earlier filed writ petitions before the High Court
and the High Court directed to issue appointments
orders to the candidates belonging to the Non
Scheduled Districts. It is required to be noted that by
the interim order passed by the High Court further
contempt proceedings before the High Court have been
stayed.
2.2.Civil Appeal No.4050 of 2022 has been preferred by
Page 4 of 107
the candidates belonging to the Scheduled Districts
and who applied as a Trained Teacher pursuant to the
aforesaid advertisement and who are not appointed
after interim order passed by the High Court dated
18.09.2019.
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 13 Districts in the State of Jharkhand had
been declared as Scheduled Areas. That the said
Notification had been issued in exercise of powers
conferred by the subparagraph (2) of paragraph 6 of
the Fifth Schedule to the Constitution of India.
Pursuant to the said Notification, following Districts 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.EastSinghbhum District.
Page 5 of 107
7.WestSinghbhum District.
8.Saraikela Kharsawan District.
9.Sahebganj District.
10.Dumka District.
11.Pakur District.
12.Jamtara District.
13.Palamu District Rabda and Bakoriya Panchayats
of Satbarwa 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 Schools & their Service
and Condition) Rules, 2015 by means of which the
conditions / qualifications for appointment of teachers
had been prescribed, 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 State Government prescribed
definition of “Local Resident of Jharkhand”. As per the
said Circular, the Local Resident of Jharkhand would
Page 6 of 107
be deemed such Indian Citizens who would fulfill any
one condition out of the following …….
“(i).he would have been residing within the
geographical limits of the State of Jharkhand and
either his own name or name of his forefather would
have been lying recorded in Survey Khata. In the
cases of landless, he would be identified by the
concerning Gram Sabha which would be based on
language, culture & traditions prevailing in the State
of Jharkhand.
(ii)would have been residing within the geographical
limits of the State of Jharkhand for the past 30
years or more due to any trade, employment and
other reasons and would have earned immovable
property or such person has wife/husband /child
and affirm commitment to stay in Jharkhand State.
(iii) would have been appointed & working
officer/employee under the Government of State of
Jharkhand / institutions being run/recognized by
the State Government, Corporation etc. Or has
wife/husband /child and affirm commitment to stay
in Jharkhand state.
(iv)Officer/employee of the Government of India,
working in the State of Jharkhand or have 188
wife/husband /child and affirm commitment to
stay in Jharkhand state.
(v)Person appointed at any constitutional or
statutory posts in the State of Jharkhand or have
wife/husband /child and affirm commitment to
stay in Jharkhand state.
(vi) Such person who would have born in the State of
Jharkhand and completed his whole education upto
Matriculation or its equivalent level from the
recognized institutions established in the state of
Jharkhand & affirm commitment to stay in
Jharkhand state.”
3.3.That thereafter, the State Government came out with
Page 7 of 107
Notification No. 5938 and Order No. 5939 dated
14.7.2016 directing that in Thirteen Scheduled
Districts of the State, the local residents of the
concerned Districts (Thirteen Scheduled Districts) only
shall be eligible to be appointed on the District Cadre
Class III and Class IV posts, for a period of ten (10)
years from the date of publication of the Notification. It
appears that said order had been issued by the
Governor of Jharkhand in exercise of powers conferred
under subparagraph(1) of paragraph 5 of the Fifth
Schedule of the Constitution of India. In the order
dated 14.07.2016 it is observed as under:
“And whereas, the scheduled Area in the State are
characterised by low Human Development Indices,
backwardness, remoteness poverty and whereas
the social indicators of the Scheduled Areas are on
an average, inferior to the average of social
indicators in the State due to uneven topography,
lack of water resources, loss in canopy coverage of
forest and uncontrolled rapid industrialization;
And whereas, recognizing the factors identified
above, the Tribal Advisory Council of Jharkhand has
recommended issuing of a notification by the
Governor for suspension of eligibility conditions as
enshrined in various appointment rules for the
appointment of class 3 and class 4 posts at district
level for a period of 10 years in the 13 districts
namely Sahebganj, Pakur, (Dumka, Jamtara,
Latehar, Ranchi, Khunti, Gumla, Lohardagga
simdega, East Singhbhum, West Singhbhum and
Page 8 of 107
Sraikelakharsawan for appointment of centpercent
District level class 3 and class4 posts by the local
residents of the district concerned;
And Whereas, the Governor of Jharkhand in order to
improve the quality of people in the Scheduled
Areas, by providing additional opportunities of
employment, in favour of the local residents of
Scheduled Areas.”
3.4.That thereafter, further order came to be published on
11.11.2016 specifically making it clear that in
compliance of Notification No.5938 dated 14.07.2016,
local residents of concerned Districts only are deemed
eligible for appointment in the vacant post of District
Level Class III and Class IV in 13 notified Districts out
of 24 Districts of the State and appointment of people
from other Districts/ other States is not permissible in
these Districts. Meaning thereby, it was made clear
that the candidate belonging to the NonScheduled
Districts cannot participate in the process of selection
in the Scheduled Districts.
3.5.That pursuant to the advertisement no. 21 of 2016
published on 28.12.2016 as modified by advertisement
dated 4.2.2017 which was issued in pursuance of the
Notification No.5938 dated 14.07.2016, applications
Page 9 of 107
were invited for filling up 17,784 Trained Graduate
Teachers out of which 13,398 posts (75% posts of total
advertised posts) were to be filled up by direct
recruitment and remaining 25% posts i.e., 4386 posts
were reserved for primary teachers. The said
advertisement was issued through Jharkhand State
Staff Selection Commission (hereinafter referred to as
the “JSSC”). In the advertisement in para 5(iii), it was
stated that so far as vacancies in the Scheduled
Districts and State are concerned, only the local
residents of those Scheduled Districts shall be entitled
to apply. As per the para 5(i) of the advertisement, a
candidate could 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 were advertised for
filling up the vacancies in the Thirteen Scheduled
Districts in the State, whereas 9149 posts were
advertised for the remaining nonscheduled districts in
the State.
3.6.Several candidates applied for the posts and
Page 10 of 107
undergone the selection process. The results were
published and process of appointments were initiated
by the State Government. Candidates belonging to the
NonScheduled Districts who were prevented making
application for the vacancy in the Scheduled Districts,
preferred writ petition before the High Court by way of
present writ petition challenging the constitutional
validity of the Notification and order issued by the
State Government bearing Notification No. 5938 and
Order No.5939 dated 14.07.2016, by which, only the
local residents of the concerned Scheduled Districts
were made eligible for appointment on the District
Cadre Class III and Class IV posts for a period of 10
years. The original writ petitioners candidates
belonging to the NonScheduled Candidates also
challenged the subsequent Advertisement No.21 of
2016, as modified by the Advertisement No.21 of 2016,
inviting applications for appointment to the posts of
Trained Graduate Teacher in the Government
Secondary Schools more particularly, para 5(iii) of the
said advertisement by which, it was stated that the so
Page 11 of 107
far as vacancies in the Scheduled Districts of the State
are concerned, only the local residents of those
Scheduled Districts shall be eligible to apply.
3.7.By order dated 21.2.2019 the Division Bench of the
High Court directed that the notices be published in
the Daily Newspaper having wide circulation about
institutions of writ petitions so that the person
interested may intervene in the writ petitions.
Pursuant to such notices, several interlocutory
applications / intervener applications came to be filed,
which came to be allowed by the High Court.
Taking into consideration the question of
Constitutional importance involved in these matters,
by order dated 18.09.2019 the Division Bench of 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 further implementation and
operation of the impugned Notification No.5938 and
Order No.5939 dated 14.7.2016, subject to the
Page 12 of 107
appointments already made, if any.
3.8It was the case on behalf of the original writ petitioners
– candidates belonging to the NonScheduled Districts
that the aforesaid Notification issued in exercise of
powers conferred in para 5(i) of the Fifth Schedule of
the Constitution of India is violative of Articles 14 & 16
of the Constitution of India. Article 13(2) of the
Constitution of India was also pressed into service.
Heavy reliance was placed on Article 16(2) of the
Constitution of India. It was submitted on behalf of the
original writ petitioners that in the garb of the non
obstante clause in para 5(i) of the Fifth Scheduled of
the Constitution, the Governor cannot infringe and /
or affect fundamental rights guaranteed under Part III
of the Constitution and that there cannot be any 100%
reservation, so as to make only residents of a
particular area to be eligible for appointment to a
public post. Heavy reliance was placed on the
decisions of this Court in the case of Kailash Chand
Sharma Vs. State of Rajasthan & Ors . reported in
Page 13 of 107
(2002) 6 SCC 562; A.V.S Narsimha Rao & Ors Vs.
State of Andhra Pradesh & Anr. reported in (1969) 1
SCC 839; Dr. Pradeep Jain & Ors Vs. Union of India
& Ors. reported in (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 245 and Indra Sawhney & Ors. Vs. Union of
India & Ors. reported in 1992 Supp (3) SCC 217, in
support of their submissions that there cannot be
100% reservation for the local residents and such
100% reservation for the local residents and / or
reservations on the basis of residence shall be hit by
Article 16 (3) of the Constitution of India. On the
constitutional validity of the Notification making 100%
reservation for the local residents in exercise of powers
under para 5 of the Fifth Schedule of the Constitution
of India, heavy reliance was placed on recent
Constitutional Bench decision of this Court in the case
of Chebrolu Leela Prasad Rao & Ors Vs. State of
Page 14 of 107
A.P. & Ors reported in (2021) 11 SCC 401.
4.0.On the other hand, it was the case on behalf of the
State as well as successful candidates belonging to the
Scheduled Districts that the Notification making 100%
reservation for local residents of the Scheduled Areas
was / is absolutely within the scope, ambit and powers
of the Governor in exercise of para 5 of the Fifth
Schedule to the Constitution of India.
4.1.It was submitted that for the upliftment of local
residents belonging to the Scheduled Areas / Districts
such a reservation is permissible. It was submitted
that the object and purpose of declaring Scheduled
Districts / Areas under Fifth Schedule is to uplift and
for the betterment of local residents of the Scheduled
Areas. It was also contended on behalf of the State and
successful candidates belonging to the Scheduled
Areas/ Districts that special powers under the Fifth
Schedule are not subject to restriction under Article 16
of the Constitution of India. Heavy reliance was placed
Page 15 of 107
on the nonobstante clause. It was submitted that para
5(i) of the Fifth Schedule of the Constitution of India
begins with the words “notwithstanding contained
anything in this Constitution”. It was further
submitted that even the Governor may by public
notification direct that any particular Act of Parliament
shall not apply to a Scheduled Area; powers conferred
on the Governor with respect to Scheduled Areas are
special powers and therefore, such powers are not
subject to any of the restrictions contained in Article
16 and / or any other provisions of the Constitution of
India.
5.0.By the impugned common judgment and order and
following the decision of the Constitutional Bench of
this Court in the case of Chebrolu Leela Prasad Rao
(supra), the High Court has declared the aforesaid
Notification and the aforesaid Advertisement
unconstitutional and / or ultra vires, to the extent
making 100% reservation for the local residents of the
Scheduled Areas. By the impugned judgment and
Page 16 of 107
order, the High Court has also held that the
Notification and the Order are violative of Article 16(3)
and 35(a) of the Constitution of India, as such powers
are vested only in the Parliament and not with the
State Legislature. By the impugned common judgment
and order, the High Court has also quashed para 5(iii)
of the Advertisement No.21 of 2016 published on
28.12.2016 as modified by the advertisement dated
4.2.2017 to the extent it provided that as against the
vacant posts of Trained Graduate Teacher in the
Scheduled Districts, only the local residents of those
Scheduled District can apply. In the result, the High
Court has quashed all the appointments of the Trained
Graduate Teachers made pursuant to the aforesaid
advertisement, in the Scheduled Districts relating to
the local residents of those Districts only. That the
High Court has further directed that all the 8423 posts
of Trained Graduate Teacher in the Government
Secondary Schools in the Scheduled Districts of the
State of Jharkhand, be advertised afresh and fresh
selection process be undertaken in accordance with
Page 17 of 107
law. The High Court also further clarified that all those
candidates who were eligible to apply in response to
the Advertisement No.21 of 2016, shall be entitled to
apply in the fresh selection process, irrespective of any
barrier, if any, as to their age.
The High Court has also made it abundantly clear
that by the adinterim order dated 18.09.2019,
selection process was never stayed by the Court in the
NonScheduled Districts and there was no stay for
appointments on any post in the NonScheduled
Districts. According to the High Court by impugned
common judgment and order has allowed all the writ
petitions accordingly.
5.1.Feeling aggrieved and dissatisfied with the impugned
common judgment and order passed by the High Court
of Jharkhand declaring Notification No. 5938 and
Order No.5939 dated 14.07.2016 as unconstitutional
and ultra vires to Articles 14, 16(2), 16(3) and 35(ai) of
the Constitution of India and consequently quashing
Page 18 of 107
para 5(iii) of the Advertisement No. 21 of 2016
published on 28.12.2016 as modified by the
Advertisement dated 4.2.2017 to the extent of
providing 100% reservation for the local residents of
the Thirteen Scheduled Districts only, selected
candidates belonging to the Scheduled Areas – local
residents of Scheduled Areas / Districts have preferred
the present Appeals.
6.0.Dr. Rajeev Dhavan, Shri Vikas Singh, Shri R.
Venkataramani, Ms. Vibha Datta Makhija, learned
Senior Advocates have appeared on behalf of the
successful candidates belonging to the Scheduled
Areas. We have heard Shri Kapil Sibal and Shri Sunil
Kumar learned Senior Advocates appearing on behalf
of the State of Jharkhand. We have heard Shri Ranjit
Kumar and Shri Gopal Sankaranarayanan, learned
Senior Advocates appearing on behalf of the contesting
respondents – original petitioners – candidates
belonging to the NonScheduled Areas / Districts. We
have also heard Shri Ajit Kumar Sinha, Shri Colin
Page 19 of 107
Gonsalves and Shri Pallav Shishodia, learned Senior
Advocates appearing on behalf of the other respective
parties/ interveners.
7.0.Shri R. Venkataramani, learned Senior Advocate
appearing on behalf of some of the successful
candidates belonging to the Scheduled Districts /
Areas has vehemently submitted that while passing
the impugned common judgment and order the High
Court has not properly appreciated and considered the
object and purpose of declaration of the Scheduled
Areas in exercise of powers conferred under Fifth
Schedule and the object and purpose conferring
special powers to the Governor under para 5 of the
Fifth Schedule to the Constitution of India.
7.1.It is further submitted that the High Court has also
not properly appreciated and considered the reasons
for which the Notification and the order dated
14.07.2016 was issued by the Governor of State.
Page 20 of 107
7.2.It is further submitted that the Notification and the
order dated 14.07.2016 shows that the Scheduled
Districts in the State of Jharkhand are characterized
by low human development indices, backwardness,
remoteness, poverty and they are on an average
inferior to the social indicators in the State due to
uneven topography, lack of water resources, loss in
canopy average of forest and uncontrolled rapid
industrialization. That due to the aforesaid grounds
and the reasons, the Notification had to be issued by
the Governor for protecting the interest of the
residents of the Scheduled Districts.
7.3.Taking us to the Article 29, 38 and 46 of the
Constitution of India and reliance being placed on
Article 244 of the Constitution of India which deals
with the administration of Scheduled Areas and Tribal
Areas to which Fifth Schedule of the Constitution
applies, it is vehemently submitted that the said
administration has to take special care of the interests
of minorities and the people belonging to the
Page 21 of 107
Scheduled Castes, Scheduled Tribes and the weaker
sections of the society, and to protect them from social
injustice and all forms of exploitation. It is submitted
that therefore, Notification / order dated 14.07.2016
issued by the Governor in exercise of powers conferred
under para 5(i) of the Fifth Scheduled of the
Constitution of India which was issued to protect the
interest of local residents of the Scheduled Areas and
for their upliftment, ought not to have been held to be
ultra vires and / or unconstitutional by the High
Court. It is submitted that the impugned judgment
and order passed by the High Court has the effect of
taking away special rights conferred on the Governor,
conferred under para 5 of the of the Fifth Schedule of
the Constitution of India.
7.4.It is further submitted that Article 16(2) of the
Constitution of India prohibits discrimination on the
grounds “only” of religion, race, caste, sex, descent,
place of birth, residence and these expressions are
preceded by the word “only” and followed by the
Page 22 of 107
expression “or any of them” which play a very
important role. It is submitted by Shri R.
Venkataramani, learned Senior Advocate appearing on
behalf of petitioners that successful candidates
belonged to the Scheduled Area, though it was the
contention on behalf of the original petitioners that
discrimination is prohibited on the ground mentioned
in Article 16(2) and 16(3) and if any protective action is
required to be taken under Articles 29, 38 and 46 of
the Constitution of India the same is taken on any or
more of those grounds, in combination with other
factors and Article 16(2) of the Constitution of India
shall not be attracted, even if it results in some
discrimination to the other set of citizens.
7.5Shri R. Venkataramani, learned Senior Advocate
appearing on behalf of petitioners has further
submitted that Governor of the State is fully
competent under para 5(i) of the Fifth Schedule of the
Constitution of India to issue notification making
reservation in favour of the residents of the Scheduled
Page 23 of 107
Districts in order to secure justice, social, economic
and political to the residents suffering variously in the
backdrop of the conditions mentioned in the
Notification. It is urged that under Article 15(4) of the
Constitution of India, the State is empowered to make
special provisions for the advancement of any socially
and educationally backward classes of citizens or for
Scheduled Castes and Scheduled Tribes, as such there
is no violation of Articles 14 & 16 of the Constitution of
India. It is further submitted by Shri R.
Venkataramani, learned Senior Advocate that the
Scheduled Area cannot be equated with the non
scheduled areas. It is submitted that taking into
consideration various factors, it was found necessary
to protect the interests of the residents of the
Scheduled Districts.
7.6.It is submitted that it would be of immense benefit to
the school going children in the Scheduled Districts, if
they are taught in their own tribal language by the
local teachers, rather than by outsiders, who may not
Page 24 of 107
be well conversant with the local language. It is urged
that orders under challenge before the High Court as
such did not suffer from any denial of equality of
opportunity and / or discriminatory. Further the order
under challenge before the High Court only distributes
equality of opportunity in terms of felt needs of the
Scheduled Areas of the State. Hence, there can be no
objection to reasonable provisions being made as
regards Scheduled Areas. It is submitted that the
Constitution permits discrimination, albeit on
reasonable grounds.
7.7.It is further submitted that the scope of Article 16(3) is
confined to inter State borders and that it has no
application to areas within a State. In this context,
reliance is placed on the decision of this Court in the
case of AVS Narasimha Rao and Ors. Vs. The State
of A.P. reported in (1970) 1 SCR 115.
7.8.It is submitted that the Governor has the power under
para 1 of the Fifth Schedule to enact any measure in
Page 25 of 107
the interests of the Scheduled Areas. No dichotomy
between the powers under paras 1 and 2 of the Fifth
Schedule can be suggested. That they are only
different facets of the plenary powers of the Governor.
It is submitted that the powers conferred on the
Governor under para 5(1) and (2) of the Fifth Schedule
are plenary and exclusive powers. It is submitted that
therefore the Governor can also stay the law made by
the Parliament and hence the said powers are not
subject to restrictions under Article 16 of the
Constitution of India.
Shri R. Venkataramani, learned Senior Advocate
appearing on behalf of petitioners has further
submitted that as such the decision of this Court in
the case of Chebrolu Leela Prasad Rao (supra) is not
applicable at all to the facts of the case on hand. That
in the case of Chebrolu Leela Prasad Rao (supra)
there was 100% preference / reservation in favour of
only of Scheduled Tribes of the respective local areas of
Andhra Pradesh, where schools are located. It is
Page 26 of 107
submitted that in the instant case there is no such
reservation only in favour of the Scheduled Tribes of
the Scheduled Areas. He has pointed out the following
distinguishing features in support of his submissions
that the decision of this Court in the case of Chebrolu
Leela Prasad Rao (supra) shall not be made applicable
to the present cases.
I.All candidates whether in Scheduled or non
Scheduled Areas 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, generally this Court has observed that
Class III and Class IV posts stand on a separate
footing.
III.All candidates within the districts, whether
SC/ST/BC or OBC, General can apply.
IV.The provisions were experimental i.e., to last only
for 10 years. (legislative experiments in Socio
economic matters will receive judicial deference.
7.9.Relying upon the decisions of this Court in the case of
Ram Kripal Bhagat Vs. State of Bihar reported in
(1970) 3 SCR 233 and in the case of Puranlal
Page 27 of 107
Lakhanpal Vs. President of India reported in AIR
1961 SC 1519, it is prayed that there is need for
reconsideration of the decision in the case of Chebrolu
Leela Prasad Rao (supra).
7.10.It is further submitted that in the present case, the
Notification issued by the Governor, impugned before
the High Court are not hit by Articles 14 and 16 of the
Constitution of India and as such do not fall within the
scope of the judgment of this Court in the case of
Chebrolu Leela Prasad Rao (supra) . It is submitted
that the notifications can be traced both to Article
16(3) and the Fifth Schedule of the Constitution. It is
further submitted that under the Fifth Schedule the
Governor is placed at par with the parliament and the
State legislature, and the power exercisable thereunder
is plenary legislative power, and not subordinate to
any other legislative power. The power of the Governor
not to apply a parliamentary law to a Scheduled Area
would place her/ him at par with the power of the
Parliament available under Article 16(3) of the
Page 28 of 107
Constitution.
7.11.It is further submitted that that the Governor can do
what the Parliament can do under Article 16(3) of the
Constitution, and thus enact in respect of requirement
of residence, as a measure of taking care of the
interests of schools in scheduled areas. It is further
submitted that since Article 16(3) is an exception to
Article 16(1) any reasonable provision as regards
residence requirement will be saved. It does not matter
that the law is made either by Parliament or the
Governor. The power of the Governor not to apply a
parliamentary law includes the power to do what the
parliament can otherwise do.
7.12.It is further submitted that it is open to treat the
notifications not as the amending instruments of the
Rules made by the State of Jharkhand under Article
309 relating to appointment of teaching staff. It is
submitted that in the case of Chebrolu Leela Prasad
Rao (supra) answering question 2(b) raised therein it
was opined that since Rules made under Article 309
are not Parliamentary or State law they cannot be
Page 29 of 107
amended under para 5 of the Fifth Schedule.
7.13.It is further submitted that Fifth Schedule is a
Constitution within the constitution, (See
Kesavananda Bharati Vs. State of Kerala (1973) 4
SCC 225) which suggests that the paramount interest
of the scheduled areas and their development in ways
that would suit the areas (for instance lands, forests,
mineral wealth, etc. and the need to ensure against
exploitation) will always inform the Governor in the
exercise of powers under the Fifth Schedule.
7.14.It is further submitted that the rules relating to
appointment themselves provide that no candidate can
apply to posts in more than one district, and that the
cadres are district level and not State level cadres. The
Notification only extends the same restriction of one
district application to Scheduled Areas, keeping in
view the interests of all Scheduled Areas. There is no
inter se discrimination amongst eligible candidates
residing within the Scheduled Areas. All principles of
Page 30 of 107
reservation to other categories of candidates are also
applicable.
7.15.It is submitted that this court has saved domicile as a
reasonable principle as regards access to education
and public employment. The safeguards enacted in
Article 371 D, for example, are one proximate
illustration.
7.16.It is submitted that the impugned Notifications are not
discriminatory. They do not look only at the place of
residence as the factor, relevant for appointment to
schools in Scheduled Areas. They treat residence as
one among other factors, namely the best way of
promoting the interests of schools in Scheduled Areas
as a prominent or dominant aspect. In the balancing of
the interests of schools in Scheduled Areas and the
right of all in all districts to be considered for
appointment as teachers, if the factor of residence
within the scheduled district will tip in favour of the
schools' interest, then the emphasis in Article 16(2) on
Page 31 of 107
nondiscrimination "'only»' on grounds of residence will
yield to Article 16(3).
7.17.It is submitted that Article 16(2) of the Constitution of
India prohibits discrimination on the grounds "only" of
religion, race, caste, sex, descent, place of birth,
residence, and these expressions are preceded by the
word "only" and followed by the expression "or any of
them', which are significant. In the present case, the
cumulative factors of low human 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 uncontrolled rapid
industrialization have been taken into consideration.
7.18.It is further submitted that the Governor of the State is
fully competent under paragraph 5(1) of Fifth Schedule
of the Constitution of India to issue the notification
making reservation in favour of the residents of the
scheduled districts in order to secure justice social,
Page 32 of 107
economic and political, to the residents suffering
variously in the backdrop of the conditions 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 unconstitutional and / or ultra vires, in
that case, as done by this Court in the case of
Chebrolu Leela Prasad Rao (supra) the appointments
already made in the Scheduled Areas be saved even by
exercising power under Article 142 of the Constitution
of India. It is submitted that in many cases those
candidates who have been appointed in the Scheduled
Areas, were either working in the nonScheduled Areas
or for getting appointment in the NonScheduled Areas
they had left their jobs as they were getting
appointment in their own Districts. It is submitted that
equities are also in their favour. It is further submitted
that even appointment of the petitioners may not be
disturbed when large number of posts are still lying
vacant in the State of Jharkhand and under the
Page 33 of 107
provision of Right to Education Act, fundamental
rights are available to the residents of the area to have
access to education and further it is duty cast upon
the State to provide education.
7.20. It is submitted that the High Court has erred in not
protecting the appointments already made by narrowly
applying the decision in the case of Chebrolu Leela
Prasad Rao (supra). One of the factors for protecting
appointments made to public services in pursuance of
open competition and fair opportunity, even though
falling foul of any other legal factor, will be whether the
appointments are vitiated by the candidature’s fraud
or benefit, and whether the appointees will lose on
various counts. It is a matter of record that a large
number of appointees have left their previous jobs.
Even in the case of Chebrolu Leela Prasad Rao
(supra), persons appointed as recently as in 2020 have
been protected. Reliance is also placed on the
judgement in Dr. Jaishri Laxmanrao Patil Vs. Chief
Page 34 of 107
Minister 2021 SCC Online SC 362 for protection
granted by Court to the appointments already made.
8.0.Dr. Rajeev Dhavan, learned Senior Advocate appearing
on behalf of some of the petitioners – candidates
belonging to the Scheduled Districts / Areas has
elaborately made submission on the use of the word
“only” under Article 15(1) and 16(2) of the Constitution
of India.
8.1.It is submitted by Dr. Rajeev Dhavan, learned Senior
Advocate 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 suggest that any of the
prohibited classification “including caste” cannot be
taken as the basis of the classification unless there is
some wider constitutional or public purpose and the
classification has a nexus to and subserves that
purpose. Reliance is placed on the decision of this
Court in the case of Kailash Chandra Sharma (supra)
(para 14) on the prohibitions in Article 16(2). That it is
Page 35 of 107
observed in the said decision that prohibitory mandate
under Article 16(2) is not attracted if the alleged
discrimination is on grounds not merely related to
residence but the factum of residence is only taken
into account in addition to other relevant factors.
8.2.Reliance is also placed on the decision of this Court in
the case of P. Rajendran Vs. State of Madras reported
in (1968) 2 SCR 786. It is submitted that as held by
this Court in the aforesaid decision if the reservation
in question, had been based only on caste and had not
taken into account the social and educational
backwardness of the caste in question, it would be
violative of Article 15(1) but it must not be forgotten
that a caste can also refer to a class of citizens and if
the caste as a whole is socially and educationally
backward, reservation can be made in favour of such a
caste on the ground that such a caste is socially and
educationally backward class within the meaning of
Article 15(4).
Page 36 of 107
8.3.Dr. Rajeev Dhavan, learned Senior Advocate has also
relied upon 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 of Jayshree Vs. State of
Kerala reported in (1976) 3 SCC 730 in support of his
submission that for upliftment of local residents
belonging to the Schedules Areas, the Governor can in
exercise of powers conferred under para 5 of the Fifth
Schedule stay any of the Act made by the Parliament
and / or State and the same cannot be said to be
affecting rights of the individual under Articles 16(2)
and 16(3) of the Constitution of India.
9.0.Shri Vikas Singh, learned Senior Advocate appearing
on behalf of some of the original petitioners has made
further submission in support of the prayer to mould
the relief to protect the services of the already
appointed candidates as they participated in a fair
process of selection in which no malpractice was
involved. It is submitted that even today, there are
more than 4000 posts available in the Scheduled
Page 37 of 107
Districts which are lying vacant. In support of his
above prayer, it is urged that this Court, in the case of
Chebrolu Leela Prasad Rao (supra) had saved the
appointments already made. It is submitted that this
was because at least 50% of the seats had been
reserved for Scheduled Tribes only which was struck
down by this Court. It is submitted that applying the
said observations in the present case also this Court
while exercising its extraordinary powers conferred
under Article 142 of the Constitution of India may
protect the appointments made in the State of
Jharkhand as about 50% appointments of total
advertised vacancies have been made till now. It is
submitted that if the appointments already made are
set aside pursuant to the impugned common judgment
and order passed by the High Court, in that case,
lakhs of children who go to the school would be
without teachers which would be contrary to the
constitutional mandate of Right to Education as
provided under Article 21A of the Constitution of India.
Page 38 of 107
9.1.It is submitted that thousands of innocent
petitioners / teachers will be rendered unemployed as
against 219 contesting respondents / interveners.
That the paramount public interest demands that the
appointments already made are not disturbed and the
impugned judgment is made to apply only
prospectively.
9.2.It is submitted that as such the original petitioners
took part in the selection process, knowing fully well
about the reservation made in favour of the local
residents of the Scheduled Districts and thereafter
having taken part in the selection process and having
failed in getting selected, they cannot now turn around
and challenge the conditions laid down in the
advertisement.
9.3.It is further submitted that it is not true that less
meritorious candidates were given appointment and
the rights of meritorious candidates has been
hampered. That as a matter of fact, in all most every
Page 39 of 107
subject most of the appellants herein were much more
meritorious than that of last selected / non selected /
less meritorious candidates of NonScheduled
Districts.
Making above submissions, it is prayed to mould
the relief and to direct to apply the impugned common
judgment and order passed by the High Court
prospectively and / or at least to save appointments
already made.
10.0.Similar prayer to mould the relief and save the
appointments already made and to direct to apply
impugned judgment and order passed by the High
Court prospectively has been made by Shri P.S.
Patwalia, learned Senior Advocate appearing on behalf
of some of the appellants/ teachers 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 of the Districts where
Page 40 of 107
they would like to be appointed, which would be done
with reference to their merit against the vacant posts
and with respect to rest of the vacant posts, the State
may issue a fresh advertisement in accordance with
law, with the age relaxation to the candidate who had
already participated in the 2016 selection. In support
of his above submission, reliance is placed on the
decision of this Court in the case of Hanuman Dutt
Shukla Vs. State of Uttar Pradesh reported in (2018)
16 SCC 447.
10.1.Shri Patwalia, learned Senior Advocate has also
reiterated what has been submitted on behalf of the
other counsel on merits by assailing the impugned
common judgment and order passed by the High Court
and on the constitutional validity of the Notification /
Orders issued by the Governor / State Government
providing reservation for candidates belonging to the
local residents of the Scheduled Areas/ Districts.
11.0.Ms. Vibha Datta Makhija, learned Senior Advocate
appearing on behalf of some of the appellants herein –
candidates already appointed has made following
submissions in support of her prayer to mould the
Page 41 of 107
relief in favour of already appointed candidates.
I.That the appointments were made before the
decision of this Court in the case of Chebrolu
Leela Prasad Rao (supra). Thus, at the time of
appointment of the petitioners herein, law in the
State of Jharkhand was not clear and was in a
state of flux;
II.Even this Court has vide final order in the case of
Chebrolu Leela Prasad Rao (supra) has saved
the appointments;
III.That all the appointed candidates petitioners are
appointed by a fair process of selection and they
are all meritorious candidates;
IV.The Schools would be without teachers in case
the petitioners are ousted from service. In SLP
(C)No.12490 of 2020 about 1108 schools would
be having no teachers and therefore, it may affect
the education of the pupils. That the residents of
the Scheduled Areas are also having right to
education which is a fundamental right as
provided under the Constitution of India.
Therefore, if the petitioners and other already
appointed teachers are removed, in that case, the
Page 42 of 107
schools would be without teachers and therefore,
it may affect / hamper the education in the State
of Jharkhand.
11.1.Ms. Makhija, learned Senior Advocate has also relied
upon the 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 SCC 362, in
support of her prayer to direct to apply the impugned
judgment and order passed by the High Court only
prospectively.
12.While assailing the impugned judgment and order
passed by the High Court Shri Kapil Sibal, learned
Senior Advocate and Shri Sunil Kumar, learned Senior
Advocate appearing on behalf of the State of
Jharkhand have vehemently submitted that in the
Page 43 of 107
present case and in the facts and circumstances of
the case, High Court has committed a grave error in
declaring the Notification / Order issued by the
Governor / State Government and the advertisement
providing reservation for the local residents of
Scheduled Area / Districts as unconstitutional and
ultra vires Articles 14, 16 and 35 of the Constitution of
India.
12.1.It is submitted on behalf of the State that there is a
basic fallacy in the contention of the original
petitioners that the impugned Notification makes the
District as the basis of classification. It is submitted
that as such a classification is made by the
Constitution itself and the basis is “Scheduled Area” as
contemplated under Article 244 r/w Fifth Schedule of
the Constitution of India. That the Scheduled Areas
are such of those areas comprised of mostly tribal
population within the different States constituting the
Union of India which the Constitution of India treats
as special in the matter of its governance. That the
Page 44 of 107
President may, by an order declare any such area as
Scheduled Area under para 6 of Fifth Schedule of the
Constitution of India. Under subpara 2 of para 5 of
Fifth Schedule, the President may direct that the whole
or any specified part of a Scheduled Area shall cease to
be a Scheduled Area or a part of such an area, or even
increase the area of a Scheduled Area in the State.
Thus the President may declare an entire District as a
Scheduled Area or a part of the District as a Scheduled
Area or even the combination of two Districts as a
Scheduled Area. It is submitted that in the instant
case on a consideration of the demography of the
different Districts in the State of Jharkhand, the
President of India formed an opinion to declare the
areas comprised in 13 Districts as a Scheduled Area
and made the Scheduled Areas (State of Jharkhand)
Order, 2007. That as time passes the President may
declare that a portion of any of the 13 Districts may
cease to be a Scheduled Area or even increase the area
of any of the declared Scheduled Areas by combining
portions of two Districts. Therefore the impugned
Page 45 of 107
Notification and order makes the District as the basis
of classification. It is submitted that as such there is
no challenge to the Scheduled Area (State of
Jharkhand) Order, 2007 in these cases.
12.2.So far as the contention on behalf of the original writ
petitioners that impugned Notification and Order
purport to modify Rules framed under the proviso to
Article 309 which are neither an Act of Parliament nor
an Act of State Legislature, it is submitted that as
such impugned Notification carves out an exception by
stating “Notwithstanding anything contained in these
rules or any other Act, Order, Direction, Rules or Law
for the time being in force” and hence would include
an Act of Parliament like the “Right of Children to Free
and Compulsory Education Act, 2009” which was
enacted pursuant to Article 21A of the Constitution of
India and is applicable to Elementary Schools. It is
submitted that Section 23 of the said 2009 Act makes
provision for eligibility for appointment of teachers in
Elementary Schools. Hence the impugned Notification
Page 46 of 107
would have to be read as carving out an exception /
modification to an Act of the Parliament i.e., Section
23 of the said 2009 Act and same cannot be faulted
with.
12.3.It is submitted that the impugned Notification and the
Rules appended thereto which are being excepted /
modified, are both expressed to have been made by
“The Order of the Governor” and authenticated in the
manner prescribed under Article 166(2) of the
Constitution of India. That the source of power to issue
the impugned Notification can be traced to para 5(1) of
Schedule V as also proviso to Article 309 of the
Constitution of India. It is submitted that the omission
to mention “read with proviso to Article 309 of the
Constitution” after ‘in exercise of powers conferred by
the provision of subpara (1) of para 5 of the Fifth
Schedule ...” in the impugned Notification shall not
affect / invalidate the amendment to the Rules framed
under the proviso to Article 309 of the Constitution of
India. That in the case of Union of India and Anr. Vs.
Page 47 of 107
Tulsiram Patel reported in (1985) 3 SCC 398 (para
126) it is observed that the source of power exists by
reading together two provisions, whether statutory or
constitutional and the order refers to only one of them
but the validity of the order should be upheld by
construing it as an order passed under both the
provisions.
12.4Now so far as submission on behalf of the original writ
petitioners whether the impugned Notification / Order
are violative of Article 16 of the Constitution of India is
concerned, it is vehemently submitted that the
impugned Notification and Order are not “only” on the
ground of residence. It is submitted that social
indicators in the scheduled areas being lesser as
compared to the other areas of the State as also the
other factors mentioned in the impugned Notification /
Order which indicate that those residing therein are
not equally circumstanced as those residing in the
Non Scheduled Areas, there is no equality of
opportunity. Hence, a duty is cast upon the State to
minimize the inequalities in income and endevour to
Page 48 of 107
eliminate inequalities in status, facilities and
opportunities, not only amongst individuals but also
amongst group of people residing in different areas or
engaged in different vocations. It is submitted that the
Directive Principle of State policy contained in Articles
38, 39, 39A, 43 and 46 part IV of the Constitution of
India would apply in this case. It is submitted that the
impugned order No.5939 dated 14.07.2016 was issued
after noticing the Report of Tribal Advisory Council
and various factors of inequality between the
Scheduled Areas and NonScheduled Area, it is stated
therein that, inter alia, that additional opportunities of
employment had to be provided to those residing in
Scheduled Areas. That in the case of Kailash Chand
Sharma (supra) (para 48) it is observed that
“equalising unequals by taking note of their handicaps
and limitation is not impermissible under the
Constitution provided that it seeks to achieve the goals
of promoting overall equality”. It is urged that in the
present case it was expected that overall equality
would be achieved by expression / modification of the
Page 49 of 107
Rules made by impugned Notification and Order for a
period of ten years. Therefore, as such, the impugned
Notification and order cannot be said to be violative
Article 16 of the Constitution of India.
12.5.Now so far as submission on behalf of the original writ
petitioners that the impugned Notification is violative
of Article 14 of the Constitution of India is concerned,
it is vehemently submitted by learned Senior Advocate
on behalf of the State that such argument based on
infringement of Article 14 is fallacious. It is contended
that while Article 14 guarantees that the State shall
not deny to any person equality before law or the equal
protection of laws, para 5(1) of Fifth Schedule starts
with a non obstante clause which empowers the
Governor to direct that any Central Law or State Law
shall not apply to a Scheduled Area or part thereof or
may apply with such exceptions or modifications as he
may direct. It is submitted that if the submission on
behalf of the original petitioners that the impugned
notification / order is in violation of Article 14 is
Page 50 of 107
accepted, in that case, it would lead to an apparent
conflict between two constitutional provisions, viz.
Article 14 and para 5(1) of Fifth Schedule. It is
submitted that this conflict can only be resolved by
following the well settled principle of harmonious
construction that the special law shall prevail over the
general. Reliance is placed on the decision of this
Court 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 submitted that said provision for
the Governance and development of the Scheduled
Areas and the Tribals residing therein would never be
subject to the general provisions of the fundamental
rights guaranteed under Article 16.
12.6In the alternative, it is prayed by the learned Senior
Advocate appearing on behalf of the State not to
disturb the appointments already made earlier and to
apply the impugned common judgment and order
passed by the High Court prospectively so that it may
not affect the education of the local residents of the
Page 51 of 107
Scheduled Areas. It is submitted that if the impugned
judgment and order passed by the High Court is
implemented and the appointments already made are
also set aside as observed and held by the High Court,
in that case, the teachers will have to be relieved and
many schools in the Scheduled Areas would be
without teachers and it may ultimately hamper
education in the State and which may violate the
fundamental rights which would be available to the
local residents of the Scheduled Area guaranteed
under Article 21 A of the Constitution of India.
13.Present Appeals are vehemently opposed by Shri Ranjit
Kumar and Shri Gopal Sankaranarayanan, learned
Senior Advocates appearing on behalf of the contesting
respondents – original petitioners – candidates
belonging to the NonScheduled Areas / Districts.
13.1.Shri Ranjit Kumar, learned Senior Advocate appearing
on behalf of the original writ petitioners appearing in
Civil Appeal No.4044 of 2022 on behalf of Soni Kumari
Page 52 of 107
has submitted that the original writ petitioners (W.P
No.1387 of 2017 before the High Court) approached
the High Court challenging the State Government
Notification No.5938 and Order No.5939 dated
14.07.2016 whereby in Thirteen Scheduled Districts in
Jharkhand (out of total 24 Districts) only local
residents of Thirteen Scheduled Districts were made
eligible for appointment to Class III and IV posts for a
period of 10 years as well as advertisement dated
28.12.2016 as modified on 4.12.2017 and clause V (iii)
which restricted only local residents / domicile of
notified / Scheduled Districts alone being entitled to
submit application against vacancies earmarked for
the said Districts. It is submitted that due to the
impugned Notification / order and the advertisement
she was constrained to submit the application Form
for District Palamu – a NonScheduled District, though
after her marriage she is residing at Ranchi, a
Scheduled District. It is submitted that she had
secured more marks than the cut off marks obtained
by the last selected candidate in her category and
Page 53 of 107
subject in the Scheduled Districts and yet she was not
selected. It is submitted that in this factual
background the challenge to the impugned notification
/ order and the advancement are required to be
appreciated.
13.2.It is submitted by Shri Ranjit Kumar, learned Senior
Advocate that the issues which arises for consideration
in the instant case are:
I.Whether the exercise of Governor's power under
Paragraph 5 of the Fifth Schedule is a "plenary
power" or an "enabling power" which must meet
the test of basic feature/foundational principles
and fundamental rights guaranteed under Part III
of the Constitution?
II.Whether the Governor is vested with the power to
determine eligibility based on residence
(specifying 100% reservation for domiciles in
Schedule Districts) under Paragraph 5(1) of the
Fifth Schedule?
III.Whether GOs No. 5938 & 5939 dated 14.07.2016
whereby in the 13 Scheduled Districts in
Jharkhand, Only local residents of the said
districts were declared eligible for appointment to
Page 54 of 107
Class Ill and IV posts for a period of 10 years are
ultra vires Articles 14, 16(2)&(3) and 35 (ai) of
the Constitution?
13.3.In support of the submissions on behalf of the original
petitioners – candidates belonging to the Non
Scheduled Areas that the impugned Notification /
Order and the advertisement restricting the local
residents of the Scheduled Area only to apply for the
post in the Scheduled Area are ultra vires to Articles
14 & 16 of the Constitution of India and it affects
candidates belonging to the nonScheduled Area
guaranteed under Part III of the Constitution of India,
following submissions are made:
I.The power vested with the Governor under Article
244(1) read with the Fifth Schedule of the
Constitution is not a plenary power but is an
enabling power to meet the object specified
therein i.e., "Administration of the Scheduled
Areas". Paragraph 5(1) of the Fifth Schedule is
one facet of this enabling power vested with the
Governor. In terms of this paragraph, he may
determine which Parliament or State legislation
Page 55 of 107
shall apply to the Scheduled Area, specify the
exceptions/modifications to the legislations so
specified and also determine retrospective
applicability of such legislation;
II.The power of the Governor under Para 5(1) of
Fifth Schedule does not extend to subordinate
legislation; it is with respect to an Act enacted in
the sovereign function by the Parliament or
legislature of the State which can only be dealt
with;
III.The Non obstante clause in Paragraph 5 of Fifth
Schedule cannot be construed as taking away the
provision outside the limitations on the amending
power and has to be harmoniously construed
consistent with the foundational principles and
the basic features of the Constitution;
IV.The Governor's power under Para 5(1) of the Fifth
Schedule to the Constitution is subject to some
restrictions, which have to be observed by the
Parliament or the legislature of the State while
making law and shall not affect fundamental
rights guaranteed under Part III of the
Constitution;
In support of above submissions, heavy reliance
Page 56 of 107
is placed on the decision of this Court in the case of
Chebrolu Leela Prasad Rao (supra) (Paras 102104,
154(1)(c)).
13.4.It is further submitted by Shri Ranjit Kumar, learned
Senior Advocate that residence local by itself cannot be
a ground to accord any preferential treatment for
reservation in public employment by the State
Government since the same stands specifically barred
by Article 16(1) and (2) of the Constitution. Reliance is
placed on the decision of this Court 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
matter jurisdiction to prescribe any requirement as to
residence within the State in light of Article 16(3) r/w
Article 35 (ai) of the Constitution which mandate that
power to create residential qualification for
employment is exclusively conferred on Parliament and
not the State Legislature which, by necessary
corollary, shall exclude the State Executive (Governor)
Page 57 of 107
whose power is coterminus with the State Legislature.
It is submitted that the Parliament alone is empowered
to make the law prescribing residential requirement
within a State or Union Territory, as the case may be,
in relation to a class or classes of employment. It is
submitted that therefore, in the absence of
parliamentary law, even the prescription of
requirement as to residence within the State is
impossible. In support of above submission, reliance is
placed on the decision of this Court in the 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 1314) and Rajesh Kumar
Gupta & Ors. Vs. State of UP & Ors. reported in
(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 Thirteen Scheduled District in the
Page 58 of 107
State of Jharkhand whereby only local residents of
said Districts were declared eligible for appointment to
Class III and IV posts for the period of 10 years, are
contrary to the law laid down by this Court in the case
of Indra Sawhney (supra) (para 788) as well as recent
decision of the Constitutional Bench of this Court in
the case of Chebrolu Leela Prasad Rao (supra) (para
104) wherein it has been held that the outer limit of
the reservations contemplated in Clause (4) of Article
16 of the Constitution of India should not normally
exceed the limit of 50%.
13.7.Now so far as justification by the State in invoking
“sons of the soil” policy prescribing reservation or
preference based on domicile or 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
is submitted that in the said decision it is observed
and held that the Parliament alone has been given the
right to enact an exception to the ban on
discrimination based on residence. The impugned
Page 59 of 107
Government Notifications No. 5938 & 5939 dated
14.07.2016 are ex facie violative of Article 14 of the
Constitution in as much as the same is not based on
any intelligible differentia and does not have any
rational nexus with the object and purpose it has set
out to achieve i.e., selection of the most competent
teachers to impart quality education in secondary and
high schools run by State Government and
improvement of educational standard of the residents
within the State. It is submitted that many districts
notified as Scheduled Districts like East Singhbhum
(Jamshedpur) and Ranchi are at the top half of the
Human Development Index (HDI) in Jharkhand
whereas the Petitioner's District Palamau has the
lowest HDI in the State, yet has been classified as a
NonScheduled District which smacks of arbitrariness
adopted by the State in determination of Schedule and
Non Scheduled Districts.
13.8.It is further submitted that even the contention raised
by the State Government and some of the learned
Page 60 of 107
counsel appearing on behalf of the candidates
belonging to the Scheduled Areas that the impugned
Notification / Order were premised on the basis that
candidates who knew the local tribal language spoken
in the concerned district would be in a better position
to teach the students, is absolutely fallacious. It is
submitted that as such said contention has not been
approved and / or accepted by this Court in the case
of Chebrolu Leela Prasad Rao (supra). That even
otherwise TGT Recruitment Process is conducted for
selection of Trained Graduate Teachers to teach
various subjects in Secondary Schools. It is submitted
that thus excepting for the local tribal language
subject, all other subjects (viz. English, Hindi,
Mathematics, Science, Social Studies) which are
general in nature must be taught by the most
meritorious teachers so as to bring about an allround
development of the students as opposed to a
substandard teacher whose contribution is negligible
in academics.
Page 61 of 107
It is submitted that Hindi is the official language
in Jharkhand and is also the common medium of
interaction among the various regions in the 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 regional languages spoken in the State
would be unable to impart education to the students
in those regions. It is submitted that any person who
is well versed in Hindi (Devnagari script) is more than
competent to effectively impart education to the
students in all districts in the State without any
hindrance.
13.9.It is further submitted by Shri Ranjit Kumar, learned
Senior Advocate that once impugned Notification /
Order are held to be unconstitutional and ultra vires to
Articles 14, 16 and 35 of the Constitution of India, in
that case, any appointment made violating the
fundamental rights of the original writ petitioners and
appointment made pursuant to such unconstitutional
provisions, the same have to be set aside. It is
Page 62 of 107
submitted that therefore, the High Court has not
committed any error in quashing the appointment of
the original writ petitioner. In support of his above
submission, following recent decisions are relied upon:
I.Anupal Singh Vs. State of UP reported in (2020)
2 SCC 173.
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) 15 SCC 731.
IV.State of MP Vs. Dharam Bir reported in (1998)
6 SCC 165.
V.Syed Khalid Rizvi and Ors. Vs. Union of India
and Ors. reported in 1993 Supp. (3) SCC 575.
VI.Surajprakash Gupta and Ors. Vs. State of J &
K and Ors. reported in (2000) 7 SCC 561.
VII.R.S. Garg Vs. State of UP and Ors. reported in
(2006) 6 SCC 430.
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,
Page 63 of 107
learned Senior Advocate appearing on behalf of the
respective original writ petitioners – candidates
belonging to the NonScheduled Districts has also
requested to mould the relief under Article 142 of the
Constitution of India by directing to prepare a revised
merit list based on the already published cut off
obtained by the last selected candidate in each TGT
subject against respective categories. It is submitted
that this would entail that no fresh or de novo
recruitment process is initiated qua the advertised
posts on the one hand, while on the other hand
candidates from the present pool itself including the
original writ petition – Soni Kumar and 218 similarly
situated candidates as well as even the present
selected candidates will get an opportunity to be
considered for appointment as TGT teachers. Reliance
is placed on the decision of this Court in the case of
Rajesh Kumar Vs. State of Bihar reported in (2013)
4 SCC 690 and Ran Vijay Singh Vs. State of UP
reported in (2018) 2 SCC 357, in support of his
Page 64 of 107
request and prayer to mould the relief as prayed for.
14.Shri Gopal Sankaranarayanan, the learned Senior
Advocate has also made elaborate submissions in
support of the impugned common judgment and order.
15.In the State of Jharkhand 13 Districts were declared
as Scheduled Districts / Areas in exercise of powers
conferred by subparagraph (2) of Paragraph 6 of the
Fifth Schedule to the Constitution of India. 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 the
Constitution of India. That vide Circular dated
18.04.2016 and pursuant to the order passed by the
High Court, the State Government has prescribed
definition of “Local Resident of Jharkhand”. As per the
said circular, Local Resident of Jharkhand would be
deemed to be Indian Citizens who are fulfilling any one
condition out of the following criteria:
Page 65 of 107
“(i).he would have been residing within the
geographical limits of the State of Jharkhand and
either his own name or name of his forefather would
have been lying recorded in Survey Khata. In the
cases of landless, he would be identified by the
concerning Gram Sabha which would be based on
language, culture & traditions prevailing in the State
of Jharkhand.
(ii)would have been residing within the geographical
limits of the State of Jharkhand for the past 30
years or more due to any trade, employment and
other reasons and would have earned immovable
property or such person has wife/husband /child
and affirm commitment to stay in Jharkhand State.
(iii) would have been appointed & working
officer/employee under the Government of State of
Jharkhand / institutions being run/recognized by
the State Government, Corporation etc. Or has
wife/husband /child and affirm commitment to stay
in Jharkhand state.
(iv)Officer/employee of the Government of India,
working in the State of Jharkhand or have 188
wife/husband /child and affirm commitment to
stay in Jharkhand state.
(v)Person appointed at any constitutional or
statutory posts in the State of Jharkhand or have
wife/husband /child and affirm commitment to
stay in Jharkhand state.
(vi) Such person who would have born in the State
of Jharkhand and completed his whole education
upto Matriculation or its equivalent level from the
recognized institutions established in the state of
Jharkhand & affirm commitment to stay in
Jharkhand state.”
16.That thereafter, Governor of Jharkhand / State
Government in exercise of powers under Paragraph
2(1) of the Fifth Schedule to the Constitution of India
Page 66 of 107
has issued the order / Notification dated 14.07.2016,
inter alia, providing that notwithstanding anything
contained in any Appointment / Recruitment Rules or
any other Act, Order, Direction, Rules or Law for the
time being in force only local residents of the
Scheduled Areas / Districts in the State shall be
eligible for recruitment to the vacancy arising in Class
III and IV posts of the District Cadre in various
departments of the concerned Districts, for a period of
10 years from 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
Order
Ranchi, Dated 14.07.2016
No. 5939 / Whereas, under subparagraph (1) of
paragraph 5 of the Fifth Schedule to the Constitution
of India, the Governor may, by public notification
direct that any particular Act of Parliament or of the
Legislature of the State shall not apply to a Schedule
Area or any part thereof in the State subject to such
exceptions and modifications as specified in the
notification.
Page 67 of 107
And whereas, the Scheduled Area in the State are
characterized by low Human Development Indices,
backwardness, W.P.(C) No. 1387 of 2017 and
analogous matters remoteness poverty and whereas
the social indicators of the Scheduled Areas are on
an average, inferior to the average of social
indicators in the State due to uneven topography,
lack of water resources, loss in canopy coverage of
forest and uncontrolled rapid industrialization;
And whereas, recognizing the factors identified
above, the Tribal Advisory Council of Jharkhand has
recommended issuing of a notification by the
Governor for suspension of eligibility conditions as
enshrined in various appointment rules for the
appointment of class 3 and class 4 posts at district
level for a period of 10 years in the 13 districts
namely Sahebganj, Pakur, Dumka, Jamtara,
Latehar, Ranchi, Khunti, Gumla, Lohardagga,
Simdega, East Singhbhum, West Singhbhum and
SraikelaKharsawan for appointment of centpercent
District level class3 and class4 posts by the local
residents of the district concerned;
And whereas, the Governor of Jharkhand in order to
improve the quality of people in the Scheduled
Areas, by providing additional opportunities of
employment, in favour of the local residents of
Scheduled Areas;
The following notification shall come into effect from
the date of its publications in the official Gazette.”
“Government of Jharkhand
Deptt. of Personnel, Administrative Reforms &
Rajbhasha
Notification
Ranchi, Dated 14.07.2016
No.14 / Sthaneeyata Neeti1401/2015/5938 In
exercise of powers conferred by the provisions by
subparagraph (1) of paragraph 5 of the Fifth
Schedule to the Constitution of India, the Governor of
Jharkhand, hereby, directs that the provisions
Page 68 of 107
regarding "eligibility of the appointment" mentioned
in the various appointment rules as per list enclosed,
Government may amend from time to time, framed
by the State Government under article 309 of the
Constitution for the appointment to the district cadre
posts, shall be deemed to the modified and enforced
up to the extent as specified, hereinafter, namely:
"Notwithstanding anything contained in these
rules or any other Act, Order, Direction, Rules
or Law for the time being in 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 and analogous mattersSraikela
Kharsawan, shall be eligible for recruitment to
the vacancies arising in class3 and class4
posts of the district cadre in various
department of the concerned districts, for a
period of 10 years from the date of issue of
this notification."
By order in the name of the
Governor of Jharkhand
Sd/ Nidhi Khare
Principal Secretary to the
Government
16.1.Thus, by the aforesaid impugned Order / Notification
the Governor of Jharkhand has directed that the
provisions regarding “eligibility of the appointment”
mentioned in the various Appointment Rules, and as
framed by the State Government under Article 309 of
the Constitution of India for the appointment to the
District Cadre posts, shall be deemed to the modified
and enforced up to the extent that centpercent Class
Page 69 of 107
III and ClassIV posts in various department in the 13
Scheduled districts shall be reserved for the local
residents of the concerned districts only. At this stage,
it is required to be noted that by the said Notification
only the service Rules framed under Article 309 of the
Constitution of India came to be modified and even the
list attached to the notification does not contain any
Act of the Parliament or of the State Legislature. By
the impugned judgment and order, the High Court,
following and relying upon the decision of the
Constitutional Bench of this Court in the case of
Chebrolu Leela Prasad Rao (supra) has declared the
aforesaid Order / Notification dated 14.07.2016 as
unconstitutional and consequently has quashed
appointments of the trained graduate teachers made
pursuant to the Advertisement No. 21/2016 published
on 28th December, 2016 as modified by Advertisement
dated 4.2.2017, in the Scheduled Districts relating to
the local resident of those Districts only. That
thereafter, the High Court has directed that all the
8423 posts of Trained Graduate Teacher in the
Page 70 of 107
Government Secondary Schools in the scheduled
districts of the State of Jharkhand shall be advertised
afresh and a fresh selection process be undertaken in
accordance with law. The impugned judgment and
order passed by the High Court and the aforesaid
directions is the subject matter of the present appeals.
17.Having heard the learned counsel for the respective
parties and considering the impugned common
judgment and order passed by the High Court, the
questions which are posed for consideration of this
Court are as under:
I.Whether in exercise of powers conferred under
paragraph 5(1) of the Fifth Schedule to the
Constitution of India, whether, the Governor can
provide for 100% reservation contrary to Part III of
the Constitution of India, more particularly,
guaranteed under Article 16(1) and (2) ?
II.Whether in exercise of powers under paragraph 5(1)
of the Fifth Schedule to the Constitution of India the
Governor has the power to modify the relevant
Recruitment Rules framed under Article 309 of the
Constitution of India ?
III.What order ?
Page 71 of 107
17.1.While considering the aforesaid questions / issues the
relevant Constitutional provisions which would have a
direct bearing are required to be referred to, which are
as under:
“Article 13. Laws inconsistent with or in
derogation of the fundamental rights (1) All
laws in force in the territory of India immediately
before the commencement of this Constitution, in so
far as they are inconsistent with the provisions of
this Part, shall, to the extent of such inconsistency,
be void.
(2) The State shall not make any law which takes
away or abridges the rights conferred by this Part
and any law made in contravention of this clause
shall, to the extent of the contravention, be void.
(3) In this article, unless the context otherwise
requires,— (a) “law” includes any Ordinance, order,
byelaw, rule, regulation, notification, custom or
usage having in the territory of India the force of
law;
(b) “laws in force” includes laws passed or made by
a Legislature or other competent authority in the
territory of India before the commencement of this
Constitution and not previously repealed,
notwithstanding that any such law or any part
thereof may not be then in operation either at all or
in particular areas.
(4) Nothing in this article shall apply to any
amendment of this Constitution made under article
368.
xxx xxx xxx
Article 16. Equality of opportunity in matters
of public employment (1) There shall be equality
of opportunity for all citizens in matters relating to
employment or appointment to any office under the
Page 72 of 107
State.
(2) No citizen shall, on grounds only of religion, race,
caste, sex, descent, place of birth, residence or any
of them, be ineligible for, or discriminated against in
respect of, any employment or office under the State.
(3) Nothing in this article shall prevent Parliament
from making any law prescribing, in regard to a
class or classes of employment or appointment to an
office 1[under the Government of, or any local or
other authority within, a State or Union territory, any
requirement as to residence within that State or
Union territory] prior to such employment or
appointment.
(4) Nothing in this article shall prevent the State from
making any provision for the reservation of
appointments or posts in favour of any backward
class of citizens which, in the opinion of the State, is
not adequately represented in the services under the
State.
(4A) Nothing in this article shall prevent the State
from making any provision for reservation 3[in
matters of promotion, with consequential seniority,
to any class] or classes of posts in the services
under the State in favour of the Scheduled Castes
and the Scheduled Tribes which, in the opinion of
the State, are not adequately represented in the
services under the State.
(4B) Nothing in this article shall prevent the State
from considering any unfilled vacancies of a year
which are reserved for being filled up in that year in
accordance with any provision for reservation made
under clause (4) or clause (4A) as a separate class of
vacancies to be filled up in any succeeding year or
years and such class of vacancies shall not be
considered together with the vacancies of the year in
which they are being filled up for determining the
ceiling of fifty per cent. reservation on total number
of vacancies of that year.
(5) Nothing in this article shall affect the operation of
any law which provides that the incumbent of an
Page 73 of 107
office in connection with the affairs of any religious
or denominational institution or any member of the
governing body thereof shall be a person professing
a particular religion or belonging to a particular
denomination.
xxx xxx xxx
Article 46. Promotion of educational and
economic interests of Scheduled Castes,
Scheduled Tribes and other weaker sections
The State shall promote with special care the
educational and economic interests of the weaker
sections of the people, and, in particular, of the
Scheduled Castes and the Scheduled Tribes, and
shall protect them from social injustice and all forms
of exploitation.
xxx xxx xxx
Article 244. Administration of Scheduled Areas
and Tribal Areas (1) The provisions of the Fifth
Schedule shall apply to the administration and
control of the Scheduled Areas and Scheduled Tribes
in any State 1*** other than 2[the States of
Assam3[,4[Meghalaya, Tripura and Mizoram].
(2) The provisions of the Sixth Schedule shall apply
to the administration of the tribal areas in 2[the
States of Assam 3[,5[Meghalaya, Tripura and
Mizoram]
xxx xxx xxx
Article 246. Subjectmatter of laws made by
Parliament and by the Legislatures of States
(1) Notwithstanding anything in clauses (2) and (3),
Parliament has exclusive power to make laws with
respect to any of the matters enumerated in List I in
the Seventh Schedule (in this Constitution referred to
as the “Union List”).
(2) Notwithstanding anything in clause (3),
Parliament, and, subject to clause (1), the
Legislature of any State 1*** also, have power to
make laws with respect to any of the matters
Page 74 of 107
enumerated in List III in the Seventh Schedule (in
this Constitution referred to as the “Concurrent
List”).
(3) Subject to clauses (1) and (2), the Legislature of
any State 1*** has exclusive power to make laws for
such State or any part thereof with respect to any of
the matters enumerated in List II in the Seventh
Schedule (in this Constitution referred to as the
“State List”).
(4) Parliament has power to make laws with respect
to any matter for any part of the territory of India not
included 2[in a State] notwithstanding that such
matter is a matter enumerated in the State List.
xxx xxx xxx
Article 254. Inconsistency between laws made
by Parliament and laws made by the
Legislatures of States (1) If any provision of a
law made by the Legislature of a State is repugnant
to any provision of a law made by Parliament which
Parliament is competent to enact, or to any provision
of an existing law with respect to one of the matters
enumerated in the Concurrent List, then, subject to
the provisions of clause (2), the law made by
Parliament, whether passed before or after the law
made by the Legislature of such State, or, as the
case may be, the existing law, shall prevail and the
law made by the Legislature of the State shall, to the
extent of the repugnancy, be void.
(2) Where a law made by the Legislature of a State
1*** with respect to one of the matters enumerated
in the Concurrent List contains any provision
repugnant to the provisions of an earlier law made
by Parliament or an existing law with respect to that
matter, then, the law so made by the Legislature of
such State shall, if it has been reserved for the
consideration of the President and has received his
assent, prevail in that State:
Provided that nothing in this clause shall prevent
Parliament from enacting at any time any law with
respect to the same matter including a law adding
Page 75 of 107
to, amending, varying or repealing the law so made
by the Legislature of the State.
xxx xxx xxx
309. Recruitment and conditions of service of
persons serving the Union or a State Subject to
the provisions of this Constitution, Acts of the
appropriate Legislature may regulate the
recruitment, and conditions of service of persons
appointed, to public services and posts in connection
with the affairs of the Union or of any State:
Provided that it shall be competent for the
President or such person as he may direct in the
case of services and posts in connection with the
affairs of the Union, and for the Governor of a State
or such person as he may direct in the case of
services and posts in connection with the affairs of
the State, to make rules regulating the recruitment,
and the conditions of service of persons appointed,
to such services and posts until provision in that
behalf is made by or under an Act of the appropriate
Legislature under this article, and any rules so
made shall have effect subject to the provisions of
any such Act
Para 5 of the Fifth Schedule of the Constitution
5. Law applicable to Scheduled Areas.—(1)
Notwithstanding anything in this Constitution, the
Governor may by public notification direct that any
particular Act of Parliament or of the Legislature of
the State shall not apply to a Scheduled Area or any
part thereof in the State or shall apply to a
Scheduled Area or any part thereof in the State
subject to such exceptions and modifications as he
may specify in the notification and any direction
given under this subparagraph may be given so as
to have retrospective effect.
(2) The Governor may make regulations for the peace
and good government of any area in a State which is
for the time being a Scheduled Area. In particular
Page 76 of 107
and without prejudice to the generality of the
foregoing power, such regulations may—
(a) prohibit or restrict the transfer of land by or
among members of the Scheduled Tribes in
such area;
(b) regulate the allotment of land to members
of the Scheduled Tribes in such area;
(c) regulate the carrying on of business as
moneylender by persons who lend money to
members of the Scheduled Tribes in such
area.
(3) In making any such regulation as is referred to in
subparagraph (2) of this paragraph, the
Governor1*** may repeal or amend any Act of
Parliament or of the Legislature of the State or any
existing law which is for the time being applicable to
the area in question.
(4) All regulations made under this paragraph shall
be submitted forthwith to the President and, until
assented to by him, shall have no effect.
(5) No regulation shall be made under this
paragraph unless the Governor making the
regulation has, in the case where there is a Tribes
Advisory Council for the State, consulted such
Council.
17.2.As per Article 246(1), notwithstanding anything
contained in clauses (2) and (3), Parliament shall have
exclusive power to make laws with respect to any of the
matters enumerated in List I in the Seventh Schedule
(Union List). As per Article 246(2), notwithstanding
anything in clause (3), Parliament, and, subject to
clause (1), the Legislature of any State also shall have
Page 77 of 107
power to make laws with respect to any of the matters
enumerated in List III in the Seventh Schedule
(Concurrent List). As per Article 254 of the Constitution
of India, if any provision of law made by the Legislature
of a State is repugnant to any provision of a law made
by Parliament which Parliament is competent to enact,
or to any provision of an existing law with respect to
one of the matters enumerated in the Concurrent List,
then, subject to the provisions of clause (2), the law
made by Parliament, whether passed before or after the
law made by the Legislature of such State, or, as the
case may be, the existing law, shall prevail and the law
made by the Legislature of the State shall, to the extent
of the repugnancy, be void. Thus, as per the aforesaid
Constitutional provisions, law made by the Parliament
is supreme and shall prevail and every State/State
Legislature is bound by the law made by the
Parliament. However, paragraph 5 of the Fifth
Schedule to the Constitution of India is an exception.
Notwithstanding the aforesaid provisions, giving
supremacy to the law made by the Parliament, the
Page 78 of 107
Governor may direct that any particular Act of
Parliament or of the Legislature of the State shall not
apply to a Scheduled Area or any part thereof in the
State or shall apply to a Scheduled Area or any part
thereof in the State subject to such exceptions and
modifications as he may specify in the notification.
Thus, the expression “notwithstanding anything in this
Constitution” is related to the Constitutional provisions
regarding the supremacy of the law made by the
Parliament or State Legislature. This aspect shall be
discussed herein below while considering the
submissions made on behalf of the appellants herein
regarding paragraph 5(1) of the Fifth Schedule to the
Constitution of India.
17.3.Therefore, the short question which is posed for the
consideration of this Court is, whether, in exercise of
powers conferred under paragraph 5(1) of the Fifth
Schedule to the Constitution, the Governor can make
provisions for 100% reservation in the scheduled Areas
/ Districts which may affect the rights of the citizens
Page 79 of 107
guaranteed under Part III, more particularly, under
Article 16 (2) of the Constitution of India? Whether
such reservation would not be hit by Article 13 of the
Constitution of India?
18.Identical question came to be considered by the
Constitutional Bench of this Court in the case of
Chebrolu Leela Prasad Rao (supra). Before this Court
the Governor of State of Andhra Pradesh issued GO in
exercise of powers under paragraph 5(1) of the
Schedule 5 of the Constitution of India, directing the
posts of teachers in educational institutions in the
scheduled tribe areas shall be reserved for Scheduled
Tribes only notwithstanding anything contained in any
other order or rule or law in force. Several questions
were referred to the Constitution Bench. The following
questions were ultimately framed for consideration by
the Constitutional Bench:
(1) What is the scope of paragraph 5(1), Schedule V to the
Constitution of India?
(a) Does the provision empower the Governor to
make a new law?
Page 80 of 107
(b) Does the power extend to subordinate
legislation?
(c) Can the exercise of the power conferred therein
override fundamental rights guaranteed under
Part III?
(d) Does the exercise of such power override any
parallel exercise of power by the President under
Article 371D?
(2) Whether 100% reservation is permissible under the
Constitution?
(3) Whether the notification merely contemplates a
classification under Article 16(1)and not reservation
under Article 16(4)?
(4) Whether the conditions of eligibility (i.e., origin and
cutoff date) to avail the benefit of reservation in
the notification are reasonable?"
18.1. Question No.1(a), (b), (c) and question no.3 referred to
herein above are relevant for our purpose.
18.2.After taking into consideration the relevant
Constitutional provisions viz. Article 244, Fifth
Schedule, so far as question No.1(a) viz. whether the
provision empower the Governor to make a new law is
concerned, it is observed and held by the Constitution
Page 81 of 107
Bench that the Governor’s power to make new law is
not available in view of the clear language of Para 5(1)
Fifth Schedule does not recognize or confer such
power, but only power is not to apply the law or to
apply it with exceptions or modifications.(para 51)
18.3.Answering question no.1(b) viz. does the power extend
to subordinate legislation, it is observed and held that
Rules framed under the proviso to Article 309 of the
Constitution cannot be said to be an Act of Parliament
or of State Legislature. It is observed and held that
the power of Governor under Para 5(1) of Schedule V
of the Constitution is restricted to modifying or not to
apply, Acts of the Parliament or Legislature of the
State. Thus, Rules could not have been amended in
the exercise of the powers conferred under Para 5(1)
of the Schedule V. It is further observed and held that
the Rules made under the proviso to Article 309 of the
Constitution cannot be said to be an enactment by
the State Legislature. (paras 52 to 57).
Page 82 of 107
18.4.While answering question 1(c) viz. can the exercise of
the powers conferred under Para 5(1) of Fifth
Schedule override fundamental rights guaranteed
under Part III, after considering the decisions of this
Court in the case of Kesavananda Bharati Vs. State
of Kerala reported in (1973) 4 SCC 225; Waman Rao
Vs. Union of India reported in (1981) 2 SCC 362;
I.R. Coelho (Dead) by Lrs. Vs. State of T.N. reported
in (2007) 2 SCC 1; S.R. Chaudhuri Vs. State of
Punjab reported in (2001) 7 SCC 126; Ajay Hasia
Vs. Khalid Mujib Sehravadi reported in (1981) 1
SCC 722; E.P. Royappa Vs. State of Tamil Nadu
reported in (1974) 2 SCC 3; Maneka Gandhi Vs.
Union of India reported in (1978) 1 SCC 248;
Ramana Dayaram Shetty Vs. International Airport
Authority of India and Ors. reported in (1979) 3
SCC 489; Neelima Misra Vs. Harinder Kaur Paintal
reported in (1990) 2 SCC 746 and Peerless General
Finance and Investment Co. Ltd Vs. Reserve Bank
Page 83 of 107
of India reported in (1992) 2 SCC 343, it is finally
observed and held that the power conferred on the
Governor to deal with the scheduled areas is not
meant to prevail over the Constitution. The power of
the Governor is pari passu with the legislative power
of Parliament and the State. The legislative power can
be exercised by the Parliament or the State subject to
the provisions of Part III of the Constitution.
Thereafter, it is ultimately observed and held that the
power of the Governor does not supersede the
fundamental rights guaranteed under Part III of the
Constitution. It has to be exercised subject to Part III
and other provisions of the Constitution. It is further
observed and held that when Para 5 of the Fifth
Schedule confers power on the Governor, it is not
meant to confer an arbitrary power. The Constitution
can never aim to confer any arbitrary power on the
constitutional authorities. They are to be exercised in
a legal and rational manner keeping in view the
objectives and provisions of the Constitution. The
powers are not in derogation but in the furtherance of
Page 84 of 107
the Constitutional aims and objectives. (para 78).
While holding so, the Constitutional Bench also
considered the effect of the nonobstante clause used
in para 5(1) of the Fifth Schedule of the Constitution.
While considering the effect of the nonobstante
clause, it is observed in para 69, 70, 74 and 75 as
under:
“69. Para 5(1) of the Fifth Schedule of the
Constitution starts with a nonobstante clause.
What is the effect of the non obstante clause visa
vis the applicability to other provisions of the
Constitution? Whether the provisions of Para 5(1)
prevail over all other provisions of the Constitution?
Whether the fundamental rights in Part III of the
Constitution are inapplicable and need not be
satisfied?
70. The provision of the Fifth Schedule beginning
with the words “notwithstanding anything in this
Constitution” cannot be construed as taking away
the provision outside the limitations on the
amending power and has to be harmoniously
construed consistent with the foundational
principles and the basic features of the
Constitution.
XXXXXXXXXXXX
74. The nonobstante clause contained in Para 5(1)
of the Fifth Schedule of the Constitution means the
Governor can exercise power in spite of the
provisions contained in Article 245 of the
Constitution, conferring the power upon Parliament
to make laws and the legislature of the State. The
Parliament has the power to enact the law. It
cannot be questioned on the ground that it would
have extra territorial operation.
Page 85 of 107
75. The nonobstante clause has also been
considered in Smt. Parayankandiyal Eravath
Kanapravan Kalliani Amma & Ors. v. K. Devi &
Ors., AIR 1996 SC 1963. The scope has to be
considered in the context and purpose for which it
has been carved out.”
18.5.As observed herein above, we are also of the opinion
that the nonobstante clause contained in para 5(1) of
the Fifth Schedule of the Constitution shall be read
with respect to power of the Governor to suspend
and/or modify the law made by the Parliament despite
Articles 244 and 245 of the Constitution of India. It
cannot be read as conferring upon the Governor
absolute power and/or unfettered power,
notwithstanding the provisions contained in Part III of
the Constitution.
19.While answering question no.2 viz. whether 100%
reservation is permissible under the Constitution,
after referring to and / or considering various
decisions of this Court on 100% reservation and after
considering Articles 14, 15 and 16 and other relevant
Constitutional provisions and after taking into
Page 86 of 107
consideration decision of this Court in the case of
Indra Sawhney (supra), it is ultimately observed and
held that the reservation that is permissible by
protective mode, by making it 100 percent would
become discriminatory and impermissible. It is further
observed and held that the opportunity of public
employment cannot be denied unjustly to the
incumbents, and it is not the prerogative of a few. The
citizens have equal rights, and the total exclusion of
others by creating an opportunity for one class is not
contemplated by the founding fathers of the
Constitution of India.
19.1.Thus, in the case of Chebrolu Leela Prasad Rao
(supra), after considering the relevant Constitutional
provisions in detail including the powers of the
Governor conferred in para 5(1) of the Fifth Schedule
of the Constitution of India, it is ultimately observed
and held as under:
“166. We answer the questions referred to us thus:
Page 87 of 107
Question No.1: The Governor in the exercise of
powers under Para 5(1), Fifth Schedule of the
Constitution, can exercise the powers concerning
any particular Act of the Parliament or the
legislature of the State. The Governor can direct
that such law shall not apply to the Scheduled
Areas or any part thereof. The Governor is
empowered to apply such law to the Scheduled
Area or any part thereof in the State subject to
such exceptions and modifications as he may
specify in the notification and can also issue a
notification with retrospective effect.
Question No.1(a): The Governor is empowered
under Para 5(1), Fifth Schedule of the Constitution,
to direct that any particular Act of Parliament or
the Legislature of the State, shall not apply to a
Scheduled Area or apply the same with exceptions
and modifications. The Governor can make a
provision within the parameters of amendment/
modification of the Act of Parliament or State
legislature. The power to make new
laws/regulations, is provided in Para 5(2), Fifth
Schedule of the Constitution for the purpose
mentioned therein, not under Para 5(1) of the Fifth
Schedule to the Constitution of India.
Question No.1(b): The power of the Governor under
Para 5(1), Fifth Schedule to the Constitution does
not extend to subordinate legislation, it is with
respect to an Act enacted in the sovereign function
by the Parliament or legislature of the State which
can be dealt with.
Question No.1(c): The Governor’s power under Para
5(1) of the Fifth Schedule to the Constitution is
subject to some restrictions, which have to be
observed by the Parliament or the legislature of the
State while making law and cannot override the
fundamental rights guaranteed under Part III of the
Constitution.
Question No.1(d): In exercise of power under Para
5(1) of the Fifth Schedule to the Constitution of
India, the Governor cannot override the notification
issued by the President in the exercise of powers
under Article 371D.The power has to be exercised
harmoniously with such an order issued under
Page 88 of 107
Article 371D, not in conflict thereof.
Question No.2: G.O.Ms. No.3/2000 providing for
100 per cent reservation is not permissible under
the Constitution, the outer limit is 50 per cent as
specified in Indra Sawhney (supra).
Question No.3: The notification in question cannot
be treated as classification made underArticle
16(1).Once the reservation has been provided to
Scheduled Tribes under Article 16(4), no such
power can be exercised under Article 16(1). The
notification is violative of Articles 14 and 16(4) of
the Constitution of India.
Question No.4 : The conditions of eligibility in the
notification with a cutoff date i.e. 2611950, to
avail the benefits of reservation, is unreasonable
and arbitrary one.”
20.Applying law laid down by the Constitution Bench of
this Court in the case of Chebrolu Leela Prasad Rao
(supra), to the facts of the case on hand, the
impugned Order/ Notification No.5938 and the Order
No.5939 dated 14.07.2016 providing 100% reservation
for the local residents of concerned Scheduled
Districts/ Areas only can be said to be
(1) beyond the scope and ambit of powers conferred
upon the Governor under para 5(1) of the Fifth
Schedule of the Constitution of India;
Page 89 of 107
(2) 100% reservation provided for the local residents of
the concerned Scheduled Districts / Areas only would
be violative of Article 16(2) of the Constitution of India
and affecting rights of the other candidates / citizens
of nonscheduled areas / Districts guaranteed under
Part III of the Constitution of India;
(3) the exercise of powers by the Governor under para
5(1) of the Fifth Schedule of the Constitution of India
modifying Recruitment Rules, 2015 which are framed
under Article 309 of the Constitution of India which
can be said to be subordinate legislation and cannot
be said to be an Act or the Law made by the
Parliament and / or State Legislature is beyond the
scope and ambit of Governor’s power under para 5(1)
of the Fifth Schedule of the Constitution of India.
21.The submission on behalf of the appellants and State
that the decision of this Court in the case of Chebrolu
Leela Prasad Rao (supra) shall not be applicable to
the facts of the case on hand inasmuch as in the said
case there was 100% reservation for Scheduled Tribe
Page 90 of 107
candidates which was held to be violating the rights of
the other reserved category candidates also and that
the decision of this Court in the case of Chebrolu
Leela Prasad Rao (supra) is required to be
reconsidered is concerned has no substance. What is
required to be considered is the ratio decidendi and
law laid down by this Court. There is clear law laid
down by Constitution Bench of this Court as noted
above. The decision of the Constitution Bench which
is rendered after considering the relevant
constitutional provisions and a number of decisions of
this Court is as such binding on us. It cannot be said
that the relevant Constitutional provisions and/or
binding decisions of this Court have not been dealt
with and/or considered by this Court. The
Constitutional Bench decision of this Court in the
case of Chebrolu Leela Prasad Rao (supra) also
cannot be said to be per incuriam ignoring and/or
taking a contrary view than any of the binding
decision of this Court. As such and as observed herein
Page 91 of 107
above, we reiterate that we are bound by the law laid
down by this Court, more particularly, a Constitution
Bench decision of this Court. We see no reason not to
follow the binding Constitution Bench decision of this
Court in the case of Chebrolu Leela Prasad Rao
(supra). We see no reason to take a different view than
the view taken by the Constitution Bench of this court
in the case of Chebrolu Leela Prasad Rao (supra). We
also see no reason to refer the matter to a Larger
Bench as prayed by some of the counsel appearing on
behalf of the appellants – candidates belonging to the
Scheduled Areas/ Districts.
22.One other submission which is made by the learned
Advocate General appearing on behalf of the State
before the High Court was that in order to overcome
the factors of low human development indices,
backwardness, poverty etc., in the scheduled districts
and to secure justice social, economic and political,
the notification was issued by the Governor of the
State for protecting the interests of the residents in
Page 92 of 107
the scheduled districts. That even otherwise, it would
be of immense benefit to the schoolgoing children in
the scheduled districts, if they are taught in their own
tribal language by the local teachers, than the
outsiders, who may not be well conversant with the
local language. At the outset, it is required to be
noted that such submission was not pressed into
service heavily by any of the counsel appearing on
behalf of the appellants before the High Court.
However, it is to be noted that in the case of Chebrolu
Leela Prasad Rao (supra) the Constitution Bench of
this Court also considered the very submission and
negated the same by observing in para 130 and 131
as under:
“130. No law mandates that only tribal teachers can
teach in the scheduled areas; thus, the action defies
the logic. Another reason given is the phenomenal
absenteeism of teachers in schools. That could not
have been a ground for providing 100 percent
reservation to the tribal teachers in the areas. It is
not the case that incumbents of other categories are
not available in the areas. When a district is a unit
for the employment, the ground applied for providing
reservation for phenomenal absenteeism is
irrelevant and could not have formed the basis for
providing 100 percent reservation. The problem of
absenteeism could have been taken care of by
providing better facilities and other incentives.
Page 93 of 107
131. The reason assigned that reservation was to
cover impetus in the scheduled areas in the field of
education and to strengthen educational
infrastructure is also equally bereft of substance. By
depriving opportunity to the others, it cannot be said
that any impetus could have been given to the cause
of students and effective education, and now that
could have been strengthened. The provisions of 100
percent reservation are ignoring the merit. Thus, it
would weaken the educational infrastructure and
the merit and the standard of education imparted in
the schools. Educational development of students
cannot be made only by a particular class of
teachers appointed by providing reservation,
ignoring merit in toto. The ideal approach would be
that teachers are selected based on merit.”
22.1.Even otherwise, it is to be noted that it may be true
that so far as basic education (at the level of primary
section) is concerned, it may help student at the
primary level (while providing basic education) to be
taught in their own tribal language. But the same
principle may not be applicable when question is of
providing education at higher level viz. above 5
th
standard. Therefore, if the candidates belonging to
other areas (nonScheduled Areas/ Districts) are given
an opportunity to impart education (who may be more
meritorious than the candidates belonging to the
Scheduled Areas / Districts) than it will be more
beneficial to the students belonging to the Scheduled
Page 94 of 107
Areas and their quality of the education shall certainly
improve. The quality of education of the schoolgoing
children cannot be compromised by giving 100%
reservation in favour of the teachers of the same/some
districts and prohibiting the appointment to more
meritorious teachers.
23.At this stage, it is required to be noted that even the
impugned Order/Notification dated 14.07.2016 and
the advertisement providing 100% reservations for
local residents of concerned Scheduled
Areas/Districts can be said to be violative of Article 13
of the Constitution of India also. As observed herein
above, the impugned Order/Notification making 100%
reservation for the local resident of the concerned
Scheduled Districts/Areas is violative of Article 16(2)
of the Constitution of India as it affects the
fundamental rights guaranteed to the candidate
belonging to the nonScheduled Areas guaranteed
under part III of the Constitution of India. As per
Article 13 of the Constitution of India, the State shall
Page 95 of 107
not make any law which takes away or abridges the
rights conferred by this Part and any law made in
contravention of Article 13(2) shall to the extent of the
contravention, be void. Therefore, also impugned
Notification/Order/Advertisement making 100%
reservation for the local resident of the concerned
Scheduled Areas / Districts shall be ultra vires Article
13 of the Constitution of India and shall be void.
24.Even under Article 16(3) of the Constitution of India, it
is the Parliament alone, which is authorized to make
any law prescribing, in regard to a class or classes of
employment or appointment to an office under the
Government of, or any local or other authority within,
a State of Union Territory, any requirement as to
residence within the State or Union territory prior to
such employment or appointment. As per Article 35 of
the Constitution of India, notwithstanding anything
contained in the Constitution, the Parliament shall
have and the Legislature of a State shall not have the
power to make laws with respect to any of the matters
Page 96 of 107
which, under clause (3) of Article 16 may be provided
for law made by Parliament. Therefore, impugned
Notification/Order making 100% reservation for the
local resident of the concerned Scheduled
Area/Districts (reservation on the basis of resident) is
ultra vires to Article 35 r/w Article 16(3) of the
Constitution of India.
25.Applying the law laid down by this Court in the case of
Chebrolu Leela Prasad Rao (supra) and in view of the
above discussion and for the reasons stated above, the
High Court has not committed any error in concluding
and holding that the Notification No.5938 and Order
No.5939 dated 14.7.2016 issued by the State
Government providing 100% reservation for the local
residents of concerned Scheduled Districts/Areas as
being unconstitutional and ultra vires Articles 14,
13(2), 15 and 16(2) of the Constitution of India. It is
rightly observed and held that said Notification and
Order would also violate Articles 16(3) and 35(ai) of
the Constitution of India. The High Court has also
Page 97 of 107
rightly observed and held that aforesaid Notification
and Order is ultra vires to paragraph 5(1) of the Fifth
Schedule of the Constitution of India. We are in
complete agreement with the view taken by the High
Court.
26.Now, so far as the prayer made on behalf of the
respective appellants herein candidates belonging to
the Scheduled Districts / Areas who were already
appointed and whose appointments are held to be
illegal is concerned and their plea that the judgment of
the High Court may be made applicable prospectively
is concerned, the same may not be accepted. Reliance
is placed upon the order passed by this Court in the
case of Chebrolu Leela Prasad Rao (supra), by which,
even this Court saved the appointments already made
and the another decision of this Court in the case of
Kailash Chand Sharma (supra) is concerned, such a
prayer is not to be accepted. Once the
Notification/Order dated 14.07.2016 are held to be
ultra vires, as a necessary consequences,
Page 98 of 107
appointments made pursuant to such
unconstitutional Notification/Order shall have to be
set aside and such appointments as such cannot be
regularized. As observed and held by this Court in the
case of Secretary, State of Karnataka and Ors. Vs.
Umadevi (supra), there is a distinction between
illegal and irregular appointment and that the former
cannot be regularized.
26.1.Now, so far as reliance placed upon the decision /
order passed by this Court in the case of Chebrolu
Leela Prasad Rao (supra) (para 167 to 169) is
concerned, at the outset, it is required to be noted
that before this Court the appointments were made
since 1986 onwards and such appointments
continued for a number of years and therefore, this
Court saved the appointments already made which
were continued for a number of years. While saving
the appointments already made (which as such were
found to be illegal), this Court specifically observed
that “in the peculiar facts and circumstances, the
Page 99 of 107
incumbents, who have been appointed, cannot be said
to be at fault and they belong to the Scheduled
Tribes”. Even saving of the appointments was
conditional as observed in para 168.
26.2.Now, so far as reliance placed upon the decision of
this Court in the case of Kailash Chand Sharma
(supra) in support of the prayer to apply judgment of
the High Court prospectively and/or to save
appointments already made is concerned, it is to be
noted that in the said judgment also in para 47, it is
specifically observed by this Court that the Court has
moulded the relief on a consideration of special facts
and circumstances of the case by acting within the
framework of powers vested in this Court under
Article 142 of the Constitution. It is further observed
that even the judgment may not be treated as a
binding precedent in any case that may arise in
future. Therefore, once this Court has specifically
observed that the said judgment may not be treated as
a binding precedent in any case that may arise in
Page 100 of 107
future, the said judgment ought not to have been
relied upon on behalf of the appellants.
26.3.In the present case, impugned Notification / Order is
of the year 2016. The TGT recruitment process was
initiated vide advertisement dated 28.12.2016 as
modified on 04.02.2017 and same came to be
challenged during the pendency of the recruitment
process in the year 2017 itself. It is also required to be
noted that by order dated 21.2.2019 the Division
Bench of the High Court directed that notice be
published in the daily newspapers having wide
circulation about institution of the writ petition so
that the person interested may intervene in the writ
petition. Pursuant to such notice, several interlocutory
applications/intervener applications came to be filed,
which came to be allowed by the High Court.
Thereafter, by order dated 18.09.2019, taking into
consideration the question of Constitutional
importance involved in the matters, the Division
Bench of the High Court referred the matter to be
Page 101 of 107
decided by a Larger Bench. By the same order dated
18.09.2019, the High Court stayed the further
implementation and operation of the impugned
Notification No.5938 and Order No.5939 dated
14.7.2016, subject to the appointments already made,
if any. Thus, from the aforesaid it can be seen that the
original writ petitioners are always vigilant and
diligent and approached the High Court at the first
available opportunity. Their valuable right for
consideration of their cases for appointment in the
Scheduled Districts / Areas have been taken away.
They have been successful before the High Court.
Therefore, in the facts and circumstance of the case,
the decision relied upon on behalf of the appellants to
make impugned judgment and order passed by the
High Court prospectively shall not be applicable to the
facts of the case on hand. In the facts and
circumstances of the case, the prayer on behalf of the
appellants herein to make the impugned judgment
and order passed by the High Court applicable
Page 102 of 107
prospectively, deserves to be rejected and is
accordingly rejected.
27.However, at the same time and in the facts and
circumstances of the case and more particularly, by
quashing and setting aside the appointments already
made there is a likelihood of more complication which
would not be in the larger public interest. Hence, we
are of the opinion that this is a fit case to mould the
relief. Apart from the fact that the appellants herein –
selected candidates belonging to the Scheduled
Districts/Areas are already working since last about
three years, in case appointments already made are
not protected then thousands of schools in the State
of Jharkhand would be without teachers and the
ultimate sufferers would be the children of tribal
areas. In view of the impugned judgment and order
passed by the High Court, by which, the High Court
has held all the appointments made in Scheduled
Districts/Areas illegal and has further directed to go
for fresh recruitment, the State will have to undergo
Page 103 of 107
fresh recruitment process which may take
considerable time and, in the meantime, there shall be
vacancies and number of schools in the tribal areas
shall be without teachers. Therefore, the Court has to
strike a balance between the rights of the original writ
petitioners as well as persons/teachers already
appointed (whose appointments are held to be illegal)
and also the public interest. Hence, we are of the
opinion that while moulding the relief, instead of
initiating a fresh recruitment process, if directions are
issued for preparation of fresh selection list based on
revised merit and based on already published cut off
obtained by the last selected candidate in each TGT
subject against respective categories., it will meet ends
of justice and striking the balance between the
competing rights so that persons already appointed
may not have to lose their employment/job and at the
same time the candidates belonging to the non
Scheduled Districts/Areas may also get their
opportunity for appointment as a teacher on merits in
the Scheduled Districts/Areas. We are of the view that
Page 104 of 107
no useful purpose will be served to go in for fresh/de
novo recruitment process as directed by the High
Court in the impugned judgment and order.
28.In view of the above discussion and for the reasons
stated above, we uphold the common impugned
judgment and order passed by the High Court
declaring the impugned Notification/Order dated
14.07.2016 as unconstitutional and ultra vires
Articles 14, 16(2), 16(3) and 35(ai) of the Constitution
of India. We are in complete agreement with the view
taken by the High Court. Present Appeals challenging
the impugned common judgment and order passed by
the High Court are hereby dismissed to the aforesaid
extent.
However, at the same time, the directions issued
by the High Court in the impugned judgment and
order while setting aside all the appointments made
pursuant to the Notification / Order dated 14.07.2016
and Advertisement No.21 of 2016 dated 28.12.2016 as
modified on 04.12.2017 and to go in for fresh/de novo
Page 105 of 107
recruitment process for the Scheduled Areas/Districts
is hereby modified. It is now directed that instead of
fresh/de novo recruitment process by setting aside the
appointments already made in the Scheduled
Districts/Areas, the State shall revise the merit list
based on the already published cut off obtained by the
last selected candidates in each TGT subject against
the respective categories with respect to entire State
and respective candidates belonging to the non
Scheduled Areas and Scheduled Areas (Districts) shall
be adjusted accordingly on the basis of individual
merit of the candidates. The present directions are
issued considering the peculiar facts and
circumstances of the case and more particularly
considering the fact that there are already vacant
posts of teachers in the State (in both Scheduled and
nonScheduled Area). We are of the view that if the
appointments already made are set aside and fresh de
novo recruitment process for such posts is initiated, a
number of schools in the Scheduled Areas shall be
without any teacher which may ultimately affect larger
Page 106 of 107
public interest and education of concerned children in
the Scheduled Areas.
Present direction is issued in exercise of powers
under Article 142 of the Constitution of India in the
larger public interest of Scheduled Areas/Districts.
Present appeals are partly allowed to the
aforesaid extent modifying the impugned common
judgment and order passed by the High Court as
observed herein above.
In the facts and circumstances of the case, there
shall be no order as to costs.
……………………………… .J.
[M.R. SHAH]
……………………………… .J.
[B.V. NAGARATHNA]
NEW DELHI;
AUGUST 02, 2022
Page 107 of 107
Legal Notes
Add a Note....