Chebrolu Leela Prasad Rao & Ors. v. State of Andhra Pradesh & Ors

FACTS:

● The Government Issued Manuscript (GOMs) was issued by the Governor of Andhra Pradesh on 5th November 1986, exercising the power to do so under para 5(1) of Schedule V of the Constitution of India.

● The GOMs issued directed that the posts for teachers in educational institutions in the Scheduled Tribe areas shall be reserved for the Scheduled Tribes (STs) only.

● The Andhra Pradesh Administrative Tribunal quashed the GOMs issued through an order.

● The order was questioned in the Supreme Court of India and was dismissed due to withdrawal.

● Another GOMs was issued on 25th April 1987 in order to amend previous GOMs. This new GOMs allowed the appointment of non-tribal people to hold the teacher posts in the schedules areas until qualified STs are available to take up the posts.

● Later, the non-tribal teachers were terminated and they filed a Writ Petition against such termination in the High Court of Andhra Pradesh.

● In 2002, the Government issued a fresh notification providing for 100 per cent reservation to the teacher posts in the schedules areas to the STs.

● Writ Petitions were filed in the High Court which upheld this issue and aggrieved by this, appeals were filed in the Supreme Court of India.

ISSUES IDENTIFIED :

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?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 of India?

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 cut-off date) to avail the benefit of reservation in the notification are reasonable?”

Note: These issues were identified by the court in the judgement.

JUDGEMENT :

Answering Issue 1, the Supreme Court of India held, “The Governor in the exercise of powers under Para 5(1), Fifth Schedule to the Constitution, can exercise the powers concerning any particular Act existing in the country. The Governor can direct that such law shall not apply and is empowered to apply such law to the Scheduled Areas or any part thereof in the State subject to exceptions and modifications, and can also issue a notification with retrospective effect.

Answering Issue 1(a), the Supreme Court of India held, “Para 5(1), Schedule V of the Constitution doesn’t empower the Governor to make a new law, but merely to make a provision within the parameters of modification and exceptions of an Act in the country”.

Answering Issue 1(b), the Supreme Court of India held, “The power of the Governor does not extend to subordinate legislation”.

Answering Issue 1(c), the Supreme Court of India held, “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”.

Answering Issue 1(d), the Supreme Court of India held, “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”.

Answering Issue 2, the Supreme Court of India held, “GOMs providing for 100 per cent reservation is not permissible under the Constitution of India, the outer limit is 50 per cent”.

Answering Issue 3, the Supreme Court of India held, “The notification in question cannot be treated as classification made under Article 16(1). Once the reservation has been provided to Scheduled Tribes under Article 16(4), no such power can be exercised under Article 16(1)”.

Answering Issue 4, the Supreme Court of India held, “The conditions of eligibility in the notification with a cut off date and origin to avail the benefits of the reservation is unreasonable and arbitrary”.

ANALYSIS :

Issue 1 and 1(a) judgement – The Governor has the power to make rules and regulations regarding the Tribes Advisory Council which can be formed for the administration and control of scheduled areas in order to advise on matters about the welfare and advancements of such areas. Further, the Governor has the authority to issue a notification which annuls the effect of any Act in the country or its parts in scheduled areas and also empowers the Governor to create exceptions, modifications and retrospective effects to such Acts. Therefore, the Governor has the power to exclude law in the scheduled areas, and apply it with exceptions and modifications, but this power cannot and does not extend to creating or re-writing a law under para 5(1) Schedule V of the Constitution of India.

Issue 1(b) judgement – A subordinate legislation cannot be added in the ken of Para 5(1). The power of the Governor is restricted to modifying and making an exception to the Acts enacted in the country as empowered under Para 5(1) of Schedule V.

Issue 1(c) judgement – Every legislative Act has to conform with the rights guaranteed under Part III of the Constitution and this limitation is applied to the Governor as well.

Issue 1(d) judgement – The order issued by the Governor conflicted with the Presidential Order issued under Article 371D. According to the Presidential Order, the non-tribe people can apply within the scheduled areas, but the Governor’s order is taking this right away due to the 100 per cent reservation for STs.

Issue 2 judgement – Making 100 per cent reservation is discriminatory and impermissible as the opportunity of public employment cannot be denied unjustly. The right to equality and the total exclusion of others by creating an opportunity for one class is not the intention behind this right. Right to equal opportunity and ensuring it under Article 51A cannot be deprived.

Issue 3 judgement – A district is a local area and a unit for the appointment of teachers. According to the  Presidential Order, incumbent of one district cannot stake claim outside the district for an appointment. The reservations for STs are covered within the ken of Article 16(4). Therefore, no further preference could have been made under Article 16(1) in favour of STs as this article is exhaustive of the special provisions that can be made in favour of SCs, STs and OBCs. Reservation for the other classes can be provided under Article 16(1) and not to STs to whom the reservation has been provided under Article 16(4).

Issue 4 judgement – The conditions deprive the STs who are permanent residents of the areas and have settled after the cut-off dates. The classification violates Articles 14, 15(1) and 16 of the Constitution as it creates a class within a class.

Note: This analysis was derived from the judgement notification.

CONCLUSION :

The Supreme Court allowed the appeals and upheld that the limits of the reservation, i.e. 50 per cent must not be exceeded by the states.

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