Satyajit Kumar vs The State Of Jharkhand

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

JUDGMENT

M.R. SHAH, J.

1.0. Feeling aggrieved and dissatisfied with the impugned Signature Not Verified

common judgment and order dated 21.09.2020 passed Digitally signed by R Natarajan Date: 2022.08.02 15:45:58 IST Reason:

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.

3.8 It 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.

7.5 Shri 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.

12.4 Now 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.

12.6 In 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 5th

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