Jhar HC | Clarifying the scope of Para 5(1) of Schedule V to the Constitution, Court strikes down notification granting preferential treatment to residents of scheduled districts in matters of public employment

Jharkhand High Court: A Full Bench of H.C. Mishra, Shree Chandrashekhar and Deepak Roshan JJ., while deciding on the validity of the impugned notification and order, reiterated the Supreme Court observation in a catena of judgments, decrying policy prescribing reservation on the basis of “sons of the soil”.

Background

The petitioners and the intervener petitioners are the aspirants for the post of Trained Graduate Teachers in various subjects in the Government Secondary schools, for which they underwent selection process, but could not be appointed in the schools situated in thirteen scheduled districts in the State because they were not the residents of the scheduled districts. The intervener respondents are in three categories, the first being those who were selected and appointed in the scheduled districts pursuant to the impugned advertisement, secondly, those who were selected but could not be appointed due to the interim order dated 18-09-2019 passed by the present Court and lastly, those whose selection/appointments have been affected in other services due to the aforesaid order.

In the present set of writ applications, 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 issued in its Department of Personnel, Administrative Reforms and Rajbhasha, is under challenge. By the said notification and order, it has been stated that in the 13 scheduled districts of the State, only the local residents of the concerned scheduled districts shall be eligible for appointment on the District Cadre Class III and Class IV posts for a period of ten years from the date of issuance of the notification. 

Contentions

Counsel for the petitioners, Vigyan Shah, contended that in the garb of the non-obstante clause in paragraph 5(1) of the Fifth Scheduled of the Constitution of India, such notification altogether depriving the candidates of the non-scheduled districts to apply for Class-III and Class-IV district cadre posts in the scheduled districts could not be issued by the Governor of Jharkhand, as the same amounts to violation of Articles 14 and 16 of the Constitution of India. It is submitted that Article 13(2) of the Constitution of India ordains that the State shall not make any law which takes away or abridges the rights conferred by Part III of the Constitution and any law made in contravention of this provision shall, to the extent of such contravention, be void. The Counsel further made submissions placing reliance on Article 16 clause (1) and (3) and Article 35 (a-i). Reliance was placed on Kailash Chand Sharma v. State of Rajasthan, (2002) 6 SCC 562 wherein the Supreme Court while considering the question whether the domiciles of the particular districts of the State of Rajasthan could be given extra bonus marks in the selection process only on the basis of residence and whether the said exercise was constitutionally valid when tested on the touchstone of Articles 14 and 16 of the Constitution of India, said, “(…)We have no doubt that such a sweeping argument which has the overtones of parochialism is liable to be rejected on the plain terms of Article 16(2) and in the light of Article 16(3). An argument of this nature flies in the face of the peremptory language of Article 16(2) and runs counter to our constitutional ethos founded on unity and integrity of the nation. Attempts to prefer candidates of a local area in the State were nipped in the bud by this Court since long past. We would like to reiterate that residence by itself — be it within a State, region, district or lesser area within a district cannot be a ground to accord preferential treatment or reservation, save as provided in Article 16(3). It is not possible to compartmentalize the State into districts with a view to offer employment to the residents of that district on a preferential basis.”

The counsel referred to several other decisions, including, A.V.S. Narsimha Rao v. State of Andhra Pradesh, (1969) 1 SCC 839, Pradeep Jain v. Union of India, (1984) 3 SCC 654, Rajesh Kumar Gupta v. State of UP, (2005) 5 SCC 172, State of Orissa v. Sudhir Kumar Bishwal, 1994 Supp (3) SCC 245 and the landmark case of Indra Sawhney v. Union of India, 1992 Supp (3) SCC 217. Furthermore, the counsel relied on another case that bears a close connection with the present factual matrix, Chebrolu Leela Prasad Rao v. State of A.P., Civil Appeal No. 3609 of 2002.

Advocate General appearing for the State, opposed the prayer and placed the Presidential Notification issued in the year 2007, declaring the scheduled areas in the State of Jharkhand. Further, reliance was placed on Notification and Order dated 14-07-2016 issued by the State Government to submit that the scheduled districts in the State of Jharkhand are characterized by low human development indices, backwardness and since they are in average inferior to the social indicators in the State due to uneven topography, the notification had to be issued by the Governor for protecting the interests of the residents in the scheduled districts. Further, AG also relied on Article 162, Article 244 and the case of G. Ramadoss v. Union of India, 1970 SCC OnLine AP 277, wherein the Andhra Pradesh High Court held, “(…) the Governor of a State is invested with overriding powers to make by public notification any law relating to the administration and control of the Scheduled Areas despite the other provisions including those enshrined in Part III of the Constitution… Hence, in my considered opinion, any notification or regulation issued by the Governor under paragraph 5(1) of the Fifth Schedule to the Constitution, even if it contravenes the fundamental rights of any citizen, is valid and intra vires of the powers vested in him” Reliance was further placed on Pulusam Krishna Murthy v. T.Sujan Kumar, 2001 SCC OnLine AP 1044.

 Observations

With respect to the validity of the notification issued by the Governor, the Court said, “We find that by the impugned notification issued by the Governor of the State, 100% reservation has been provided in favour of the residents of the scheduled districts, totally ignoring the fundamental rights of the citizens residing out of the scheduled districts, and as held by the Hon’ble Apex Court, such reservation is not permissible under the Constitution, as the outer limit is 50%, as specified in Indra Sawhney’s case”

With respect to the power of Governor, in light of Chebrolu Leela Prasad Rao v. State of A.P., Civil Appeal No. 3609 of 2002, the Court said, “(…) the Governor in exercise of powers under Paragraph 5(1) Schedule V of the Constitution, can exercise the powers concerning any particular Act of the Parliament or the Legislature of the State, directing that such law shall not apply to the scheduled areas or any part thereof, or shall apply subject to any exceptions and modifications, but by that, a new law cannot be framed by the Governor of the State. 

Decision

Upon due consideration of arguments extended and precedents cited, the Court said, “Notification No. 5938 and Order No, 5939 dated 14-7-2016, issued by the respondent State cannot be sustained in the eyes of law and must be held ultra vires Articles 14, 13(2), 15 and 16 of the Constitution of India. The impugned notification and order also violate Articles 16(3) and 35(a-i) of the Constitution of India, as such power is vested only in the Parliament and not in the State Legislatures. Consequently, the Governor of the State also cannot exercise such power. The same is ultra vires paragraph 5(1) of Schedule V of the Constitution of India as well, as the Governor has transgressed the limitations, in the garb of non-obstante clause therein.”[Sonia Kumari v. State of Jharkhand, WP (C) 1387 of 2017, decided on 21-09-2020]


Sakshi Shukla, Editorial Assistant has put this story together

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