Summary
By a 2016 notification under paragraph 5(1) of the Fifth Schedule, Jharkhand reserved all district-cadre Class III and IV posts in 13 Scheduled Districts for local residents of those districts. A teachers' recruitment confined Scheduled District vacancies to local residents. The High Court struck down the notification and quashed the resulting appointments of Trained Graduate Teachers, ordering fresh recruitment. Following Chebrolu Leela Prasad Rao, the Court held that paragraph 5(1) reaches only Acts, not service rules, and is subject to Part III, so 100% residence-based reservation violates Articles 13 and 16(2). Only Parliament may prescribe residence requirements under Articles 16(3) and 35. Under Article 142, the Court moulded relief. Instead of fresh recruitment, the State is to revise the merit list statewide on the existing cut-offs.
Issues
- Whether the Governor, under paragraph 5(1) of the Fifth Schedule, could reserve 100% of district-cadre Class III and IV posts in Scheduled Districts for local residents by modifying recruitment rules framed under Article 309.
- Whether such reservation violates Articles 13, 14, 16(2), 16(3) and 35 of the Constitution.
- Whether appointments already made under the notification should be saved or the High Court's judgment applied prospectively.
Provisions considered
- Fifth Schedule, paragraph 5(1), Constitution of IndiaThe power lets the Governor disapply or modify Acts of Parliament or the State Legislature in a Scheduled Area. It does not reach service rules under Article 309 and cannot override Part III, so the notification was beyond it. (¶¶ 17.2, 18.2, 18.3, 18.4, 18.5, 20)
- Articles 13, 16(2), 16(3) and 35, Constitution of IndiaReserving all posts in a district for its residents discriminates on residence alone and excludes other citizens, violating Article 16(2) and void under Article 13(2). Under Articles 16(3) and 35 only Parliament can prescribe residence requirements for public employment. (¶¶ 19, 20, 23, 24, 25)
- Article 142, Constitution of IndiaTo avoid leaving tribal-area schools without teachers while protecting meritorious candidates from other districts, the Court replaced fresh recruitment with a statewide revised merit list on the existing cut-offs. (¶¶ 27, 28)
Held
- The non-obstante clause in paragraph 5(1) of the Fifth Schedule frees the Governor only from the ordinary supremacy of Parliamentary and State laws in a Scheduled Area. It confers no unfettered power to override Part III. Following Chebrolu Leela Prasad Rao, the power extends only to Acts, not to service rules under Article 309, and must be exercised consistently with fundamental rights. (¶¶ 17.2, 18.3, 18.4, 18.5, 20)
- A 100% reservation for local residents of the Scheduled Districts excludes all other citizens and violates Article 16(2), and is void under Article 13(2). Only Parliament may prescribe a residence requirement for public employment under Articles 16(3) and 35. The notification was therefore unconstitutional, as the High Court rightly held. (¶¶ 19, 20, 23, 24, 25)
- Chebrolu Leela Prasad Rao is a binding Constitution Bench decision, not distinguishable on the ground that it involved reservation for Scheduled Tribes, and no reference to a larger Bench was warranted. The argument that local teachers would teach better in tribal languages was rejected there and fails for teaching above the primary level, where merit should prevail. (¶¶ 21, 22, 22.1)
- Appointments made under an unconstitutional notification are illegal, not merely irregular, and the High Court's judgment could not be made prospective. The challengers had acted promptly. The saving of appointments in Chebrolu Leela Prasad Rao and Kailash Chand Sharma rested on special facts. (¶¶ 26, 26.1, 26.2, 26.3)
- Setting aside all appointments and starting afresh would leave thousands of schools in tribal areas without teachers. In the public interest and under Article 142, the State must instead revise the merit list for the whole State on the already published cut-offs of the last selected candidates. Candidates from Scheduled and non-Scheduled Districts are to be adjusted on individual merit. (¶¶ 27, 28)
Result
Appeals partly allowed. The High Court's holding that the notification and order are unconstitutional is upheld, but its directions quashing the appointments and ordering fresh recruitment are replaced by a direction to revise the merit list statewide on the published cut-offs; no costs.