CHEBROLU LEELA PRASAD RAO & ORS. versus STATE OF A.P. & ORS.

[2020] 6 S.C.R. 28

[2020] 6 S.C.R.

ACHEBROLU LEELA PRASAD RAO & ORS.

STATE OF A.P. & ORS.

(Civil Appeal No. 3609 of 2002)

APRIL 22, 2020

[ARUN MISHRA, INDIRA BANERJEE, VINEET SARAN,M. R. SHAH AND ANIRUDDHA BOSE, JJ.]

Constitution of India – Arts. 14, 15, 16(1), 16(4), 244 and371 D; Para 5(1) of Schedule V – A.P. Education Act, 1982 – A.P.CRegulation of Reservation and Appointment to Public Services Act,1997 – The G.O.Ms. No. 3/2000 issued by the erstwhile State ofAndhra Pradesh provided 100% reservation to the Scheduled Tribecandidates for the post of teachers in the schools in the scheduledareas in the State of Andhra Pradesh – Validity of – Held: G.O.Ms.DNo. 3/2000 providing for 100% reservation is not permissible underthe Constitution, the outer limit is 50% as specified in Indra Sawhneycase – By providing 100% reservation to the scheduled tribe hasdeprived the scheduled castes and other backward classes also oftheir due representation – The concept of reservation is notproportionate but adequate – The action is thus unreasonable andEviolative of provisions of Arts. 14, 15 and 16 of the Constitution ofIndia – Consequently, G.O.Ms.No. 3/2000 is quashed.

Constitution of India – Para 5(1) of Schedule V – Scope of –Held: The Governor in the exercise of powers under para 5(1) ofSchedule V of the Constitution, can exercise the powers concerningFany particular Act of the Parliament or the legislature of the State –Para 5(1) of Schedule V confers power upon the Governor toexclude law, which is applicable in Scheduled area – It alsoempowers the Governor to apply the same with exceptions andmodifications as he deems fit – However, no new law can beformulated while exercising power under para 5(1) of Schedule VG– The power of modification cannot extend to re-writing the entirestatute.

Constitution of India – Para 5(1) of Schedule V and Art. 309– A.P. State and Subordinate Service Rules, 1996 – rr. 22, 22 –G.O.Ms. No. 3/2000 issued by the erstwhile State of Andhra Pradesh

provided 100% reservation to the Scheduled Tribe candidates forthe post of teachers in the schools in the scheduled areas – TheG.O.Ms. No. 3/2000, inter alia, refers to the Rules, 1996 and thesaid rules have been framed under proviso to Art. 309 of theConstitution – The rules 22 and 22 framed u/Art.309 were amended

– Held: The power of the Governor under Para 5(1) of Schedule Vof the Constitution is restricted to modifying or not to apply, Acts ofthe Parliament or legislature of the State – Thus, the rules could nothave been amended in the exercise of the powers conferred underPara 5(1) Schedule V – The rules made under the proviso to Art.309 of the Constitution cannot be said to be an enactment by theState legislature – Thus, it was not open to the Governor to issuethe impugned G.O.Ms. No. 3/2000.

Constitution of India – Para 5(1) of Schedule V – Power ofGovernor extend to subordinate legislation or not – Held: The powerof the Governor under Para 5(1), Fifth Schedule to the Constitutiondoes not extend to subordinate legislation, it is with respect to anAct enacted in the sovereign function by the Parliament or legislatureof the State which can be dealt with.

Constitution of India – Para 5(1) of Schedule V – Can exerciseof the power conferred in para 5(1) of the fifth Schedule overridefundamental rights guaranteed under Part-III – Held: The powerof the Governor does not supersede the fundamental rights underpart-III of the Constitution – When Para 5 of the fifth Scheduleconfers power on the Governor, it is not meant to be conferral ofarbitrary power – The power is not in derogation but the furtheranceof the Constitutional aims and objectives.

Constitution of India – Para 5(1) of Schedule V – Effect ofthe non-obstante clause – Held: The provision of the fifth Schedulebeginning with the words “notwithstanding anything in thisconstitution” cannot be construed as taking away the provisionoutside the limitation on the amending power and has to beharmoniously construed consistent with the fundamental principlesand basic features of the Constitution.

Constitution of India – Para 5(1) of Schedule V – Whetherthere is any conflict between the Presidential order and G.O.Ms.No. 3/2000 issued under the order of the Governor under para

A5(1) of the Schedule V – Held: The Presidential order was issuedproviding district/zone for local cadre, on the other hand, the orderissued by the Governor has reserved all the posts of teachers in theScheduled Areas for Schedule Tribe candidates – The aspiringcandidates of the district/ zone in the Scheduled Area cannot applyfor the post of teachers in the district as 100% reservation wasBmade vide G.O.Ms. No. 3/2000 by the Governor and it is also notdisputed that aspiring candidates cannot apply outside the district/zone because of the restrictions u/Art. 371D of the Constitution –Thus, there is clear repugnancy between the notification issuedby the president and the subsequent order issued by the GovernorCunder Para 5(1) of the Schedule V – It is not possible to harmoniseboth notifications – The Governor is competent to issue an orderwhich is not in conflict with Presidential Order – The Governorcould not have issued the order in derogation to the Presidentialorder – In the instant case, 100% reservation could not have beenprovided as that violates the Presidential Order.D

Constitution of India – Arts. 16(1) and 16(4) – Whethernotification G.O.M. No. 3/2000 contains classification u/Art. 16(1)and does not provide reservation u/Art. 16(4) of the Constitution –Held: G.O.Ms No. 3/2000 provided 100% reservation – It cannotbe said to be case of classification that has been made u/Art.E16(1) – The incumbents of various categories have the right to stakea claim for the employment of which they have been deprived –Thus, it is not matter of classification – The reservation u/Art.16(4) was made – The order providing 100% reservation is arbitrary,illegal, impermissible and unconstitutional.F

Constitution of India – G.O.Ms No. 3/2000 required candidateor the parents to reside in the area continuously w.e.f. 26.01.1950to date – Propriety of – Held: There is no rhyme or reason to requirecontinuous residence for last 50 years or more – It overlooks therights of various other persons who might have settled decadesGtogether in the area in question – It is discriminatory vis-a-vis to theScheduled tribes also settled in the area – The conditions of eligibilityin the notification with cut-off date i.e. 26.01.1950, to avail benefitof reservation, is unreasonable and arbitrary one.

CHEBROLU LEELA PRASAD RAO & ORS. v.STATE OF A.P. & ORS.

Allowing the appeals, the Court

HELD: What is the scope of Para 5(1) of Schedule V of theConstitution of India?; and Does the provision empower theGovernor to make new law?

1. Para 5(1) of Schedule V to the Constitution confers powerupon the Governor to exclude law, which is applicable in ascheduled area. It also empowers the Governor to apply the samewith exceptions and modifications as he deems fit. However, thepower to exclude an area from applicability, modification, and tocreate exceptions in the law, which was applicable in the area,cannot be said to be at par to the regulation-making powerconferred under para 5(2) of the said Rules. [Para 48][71-F-G]

2. The exceptions and modifications are created by the law,which is already applicable in the area. It is not the formulation ofa new law which is contemplated under Para 5(1) of Schedule V.No new law can be formulated while exercising power under Para5(1) of Schedule V. The power of modification cannot extend tore-writing the entire statute. The power cannot be used tosupplant the law, which is applicable. The law has to be appliedonly with exceptions or modifications. It cannot totally supersedethe existing law, which is wholly opposed to the idea of applicablelaw as in that case it would tantamount to the new law and not themodification or exception or creation of exceptions ormodifications to the applicable law. The object and substance oflaw applicable cannot be changed within the purview of Para 5(1),though the applicability of applicable law can be excluded. In casethe Governor decides the law to remain applicable, he has thepower only to create exceptions and to modify the same, not tocreate new one juxtaposed to the same applicable law.[Para 49][72-A-C]

3. Thus, the Governor in the exercise of powers under Para5(1), Fifth Schedule of the Constitution, can exercise the powersconcerning any particular Act of the Parliament or the legislatureof the State. The Governor can direct that such law shall not applyto the Scheduled Areas or any part thereof. The Governor isempowered to apply such law to the Scheduled Area or any part

Athereof in the State subject to such exceptions and modificationsas he may specify in the notification and can also issue anotification with retrospective effect. [Para 154][160-G-H]

4. The Governor is empowered under Para 5(1), FifthSchedule of the Constitution, to direct that any particular Act ofBParliament or the Legislature of the State, shall not apply to aScheduled Area or apply the same with exceptions andmodifications. The Governor can make provision within theparameters of amendment/ modification of the Act of Parliamentor State legislature. The power to make new laws/regulations, isprovided in Para 5(2), Fifth Schedule of the Constitution for theCpurpose mentioned therein, not under Para 5(1) of the FifthSchedule to the Constitution of India. [Para 154][161-A-B]

Does the power under Para 5(1) of the Fifth Schedule tothe Constitution of India extend to subordinate legislation?

D5. In substance, Rules 22 and 22A of A.P. State andSubordinate Service Rules, 1996 framed under Article 309 havebeen amended, which could not have been done as that is not theAct of the Parliament or the legislature of the State. Thus, theGovernor could not have exercised power concerning rule framedunder the proviso to Article 309 of the Constitution. [Para 54][73-EE-F]

6. The rules framed under the proviso to Article 309 of theConstitution cannot be said to be the Act of Parliament or Statelegislature. Though the rules have the statutory force, they cannotbe said to have been framed under any Act of Parliament or StateFlegislature. The rules remain in force till such time the legislatureexercises power. The power of the Governor under Para 5(1) ofSchedule V of the Constitution is restricted to modifying or notto apply, Acts of the Parliament or legislature of the State. Thus,the rules could not have been amended in the exercise of theGpowers conferred under Para 5(1) of Schedule V. The rules madeunder proviso to Article 309 of the Constitution cannot be saidto be an enactment by the State legislature. Thus, in the opinionof this Court, it was not open to the Governor to issue theimpugned G.O. No.3/2000. [Para 57][75-B-C]

CHEBROLU LEELA PRASAD RAO & ORS. v.STATE OF A.P. & ORS.

7. The power of the Governor under Para 5(1), FifthSchedule to the Constitution does not extend to subordinatelegislation, it is with respect to an Act enacted in the sovereignfunction by the Parliament or legislature of the State which canbe dealt with. [Para 154][161-C]

Can the exercise of the power conferred in Para 5 of theFifth Schedule override fundamental rights guaranteed under PartIII?

8. The power is conferred on the Governor to deal with thescheduled areas. It is not meant to prevail over the Constitution.The power of the Governor is pari passu with the legislative powerof Parliament and the State. The legislative power can beexercised by the Parliament or the State subject to the provisionsof Part III of the Constitution. In the opinion of this Court, thepower of the Governor does not supersede the fundamental rightsunder Part III of the Constitution. It has to be exercised subjectto Part III and other provisions of the Constitution. When Para 5of the Fifth Schedule confers power on the Governor, it is notmeant to be conferral of arbitrary power. The Constitution cannever aim to confer any arbitrary power on the constitutionalauthorities. They are to be exercised in rational manner keepingin view the objectives of the Constitution. The powers are not inderogation but the furtherance of the constitutional aims andobjectives. [Para 78][90-E-G]

9. Thus, the Governor’s power under Para 5(1) of the FifthSchedule to the Constitution is subject to some restrictions, whichhave to be observed by the Parliament or the legislature of theState while making law and cannot override the fundamental rightsguaranteed under Part III of the Constitution. [Para 154][161-D]

Whether the exercise of power under the Fifth Schedule ofthe Constitution overrides any parallel exercise of power by thePresident underArticle 371D?

10. The main question to be considered is whether there isany conflict between the Presidential Order and the G.O. Ms.No. 3 of 2000 issued under the order of the Governor under Para5(1) of the Fifth Schedule of the Constitution. Considering the

Ageographical disparity in public employment, Article 371D wasinserted in the Constitution, providing candidates from certaindistricts/zones to form the local cadre for different posts fordifferent parts of the States. The Presidential Order was issuedproviding district/zone for local cadre, on the other hand, the orderissued by the Governor has reserved all the posts of teachers inBthe Scheduled Areas for Schedule Tribe candidates. The aspiringcandidates of the district/zone in the Scheduled Area cannot applyfor the post of teachers in the district as 100 per cent reservationwas made vide G.O.Ms. No. 3 of 2000 by the Governor. It is alsonot disputed that aspiring candidates cannot apply outside theCdistrict/zone because of the restrictions under Article 371D ofthe Constitution. As there is 100 per cent reservation providedfor the Scheduled Tribes in the Scheduled Areas, other candidatesof Scheduled Castes, General and Other Backward Classescategory cannot apply at all in other districts. They are beingdenied the opportunity of getting the employment as against theDposts in question. Thus, the order issued by the Governor isclearly in conflict with the Presidential Order issued under Article371D. The candidates of local areas or other candidates exceptfor Scheduled Tribes have been deprived of the opportunity ofseeking public employment because of the order issued by theEGovernor, and they cannot apply outside the local area in view ofthe Presidential notification. [Para 89][101-D-H; 102-A]11. The Governor is competent to issue an order which isnot in conflict with the Presidential Order. The Governor issuedthe order when the Presidential Order was already in force in theFentire State. The Governor could not have issued the order inderogation to the Presidential Order. In opinion of this Court,100 per cent reservation could not have been provided as thatviolates the Presidential Order. [Para 90][102-D]

12. Thus, in the exercise of power under Para 5(1) of theGFifth Schedule to the Constitution of India, the Governor cannotoverride the notification issued by the President in the exerciseof powers under Article 371D. The power has to be exercisedharmoniously with such an order issued under Article 371D, notin conflict thereof. [Para 154][161-E]

Whether 100% reservation is permissible under theConstitution?

13. By providing 100 percent reservation to the scheduledtribes has deprived the scheduled castes and other backwardclasses also of their due representation. The concept ofreservation is not proportionate but adequate, as held in IndraSawhney. The action is thus unreasonable and arbitrary andviolative of provisions of Articles 14, 15 and 16 of the Constitutionof India. It also impinges upon the right of open category andscheduled tribes who have settled in the area after 26[th] January1950. The total percentage of reservation provided for ScheduledTribes in the State is 6%. By providing 100 percent reservationin the scheduled areas, the rights of the tribals, who are notresidents of the scheduled areas, shall also be adversely affected.As per Presidential order under Article 371-D, they cannot staketheir claim in other areas. The posts in other areas are to bereduced by making 100% reservation in particular area.[Para 127][141-E-G]14. reservation that is permissible by protective mode,by making it 100 percent would become discriminatory andimpermissible. The opportunity of public employment cannot bedenied unjustly to the incumbents, and it is not the prerogativeof few. The citizens have equal rights, and the total exclusion ofothers by creating an opportunity for one class is not contemplatedby the founding fathers of the Constitution of India. Equality ofopportunity and pursuit of choice under Article 51-A cannot bedeprived of unjustly and arbitrarily. [Para 134][143-D]

15. This Court finds that G.O. Ms. No.3/2000 is whollyimpermissible and cannot be said to be legally permissible andconstitutionally valid. It can be said that action is not only irrational,but it violates the rights guaranteed under Part III of theConstitution and is not sustainable. [Para 135][143-F]

16. Thus, G.O.Ms. No.3/2000 providing for 100 per centreservation is not permissible under the Constitution, the outerlimit is 50 per cent as specified in Indra Sawhney. [Para 154][161-E-F]

AWhether the notification merely contemplates aclassification underArticle 16(1) and not reservation underArticle16(4)?

17. The 100 percent reservation has been provided. Itcannot be said to be case of classification that has been madeBunder Article 16(1). Assuming, for the sake of argument, it is tobe case of classification under Article 16(1), it would have beendiscriminatory and grossly arbitrary without rationale and violativeof constitutional mandate. [Para 140][154-C]

18. The incumbents of various categories have the right toCstake claim for the employment of which they have beendeprived. Thus, it is not matter of classification. The reservationunder Article 16(4) was made. By way of 100% reservation, theemployment to others was illegally deprived and they have nochance of employment as against the post of teachers elsewherebecause of the order under Article 371D in which district/zone isDa unit. It is clear case of tinkering with reservation. [Para 141][154-D]

19. Thus, the notification in question cannot be treated asclassification made under Article 16(1). Once the reservation hasbeen provided to Scheduled Tribes under Article 16(4), no suchEpower can be exercised under Article 16(1). The notification isviolative of Articles 14 and 16(4) of the Constitution of India.[Para 154][161-F]

Whether the conditions of eligibility that is the origin andcut-off date to avail the benefit of reservation in the notificationFis reasonable:

20. The G.O. in question requires candidate or the parentsto reside in the area continuously w.e.f. 26.1.1950 to date. Thereis no rhyme or reason to require continuous residence for last 50years or more. It overlooks the rights of various other personsGwho might have settled decades together in the area in question.It is discriminatory vis-a-vis to the scheduled tribes also settledin the area and it has no purpose to be achieved and imposesrestriction which was not even provided in the Presidential Orderissued under Article 371D of the Constitution of India with respect

to residential or educational requirements. Thus, it does not laydown valid conditions. The same is fixed in highly unreasonableand arbitrary manner and limits zone of consideration to minisculewhere an opportunity for public employment has to be affordedto all concerned with reasonable rights. The conditions ofeligibility in the notification with cut-off date, i.e., 26.1.1950, toavail the benefits of reservation, is unreasonable and arbitraryone. [Paras 147 and 154][157-D-E; 166-G]

Indra Sawhney & Ors. v. Union of India & Ors., (1992)Suppl. 3 SCC 217 : [1992] 2 Suppl. SCR 454 –followed.

Ram Kirpal Bhagat and Ors. v. The State of Bihar(1969)3 SCC 471 : [1970] 3 SCR 233;Hota Venkata SuryaSivarama Sastry and Anr. v. State of Andhra Pradesh[1962] 2 SCR 535;Edwingson Bareh v. State of Assamand Ors.[1966] 2 SCR 770;Samatha v. State of A.P. &Ors.,(1997) 8 SCC 191; Puranlal Lakhanpal v.President of India & Ors. AIR 1961 SC 1519 : [1962]1 SCR 688; Bombay Dyeing & Mfg. Co. Ltd. (3) v.Bombay Environmental Action Group & Ors., (2006) 3SCC 434 : [2006] 2 SCR 920; S.K. Gupta & Anr. v.K.P. Jain & Anr., (1979) 3 SCC 54 : [1979] 2 SCR1184; S.R. Chaudhuri v. State of Punjab & Ors., (2001)7 SCC 126 : [2001] 1 Suppl. SCR 621; Col. A.S. Iyerand Ors. v. V. Balasubramanyam, (1980) 1 SCC 634 :[1980] 1 SCR 1036; Ajay Hasia and Ors. v. KhalidMujib Sehravardi and Ors., (1981) 1 SCC 722 : [1981]2 SCR 79; E.P. Royappa v. State of Tamil Nadu & Anr.,(1974) 4 SCC 3 : [1974] 2 SCR 348; Maneka Gandhiv. Union of India & Anr., (1978) 1 SCC 248 : [1978] 2SCR 621; R.C. Poudyal v. Union of India & Ors., (1994)Suppl. 1 SCC 324 : [1993] 1 SCR 891; State of Sikkimv. Surendra Prasad Sharma & Ors., (1994) 5 SCC 282: [1994] 5 SCR 563; Peerless General Finance andInvestment Co. Ld. And Anr. v. Reserve Bank of India,(1992) 2 SCC 343 : [1992] 1 SCR 406; V. JagannadhaRao and Ors. v. State of A.P. and Ors., (2001) 10 SCC401 : [2001] 5 Suppl. SCR 179; S. Prakasha Rao and

Anr. v. Commissioner of Commercial Taxes and Ors.,(1990) 2 SCC 259 : [1990] 1 SCR 561; M.R. Balaji &Ors. v. State of Mysore & Ors., [1963] Supp 1 SCR439; M. Nagaraj and Ors. v. Union of India and Ors.,(2006) 8 SCC 212 : [2006] 7 Suppl. SCR 336 – reliedon.

Jatindra v. Province of Bihar, (1949) FLJ 225;Rajasthan Housing Board v. New Pink City NirmanSahkari Samiti Ltd. and Anr.,(2015) 7 SCC 601 : [2015]5 SCR 365; B.S. Yadav & Ors. v. State of Haryana& Ors., AIR 1981 SC 561 : [1981] 1 SCR 1024;Kesavananda Bharti v. State of Kerala,(1973) 4 SCC225 : [1973] Suppl. SCR 1; Waman Rao and Ors. v.Union of India and Ors.,(1981) 2 SCC 362 : [1981] 2SCR 1; I.R. Coelho (Dead) by LRs. v. State of T.N.,(2007) 2 SCC 1 : [2007] 1 SCR 706; Neelima Misra v.Harinder Kaur Paintal & Ors., (1990) 2 SCC 746 :[1990] 2 SCR 84; Smt. Parayankandiyal EravathKanapravan Kalliani Amma & Ors. v. K. Devi & Ors.,AIR 1996 SC 1963 : [1996] 2 Suppl. SCR 1;Chandavarkar S. R. Rao v. Ashalata S. Guram, (1986)4 SCC 447 : [1986] 3 SCR 866; Jay Engineering WorksLimited v. Industry Facilitation Council and Anr.,(2006)8 SCC 677 : [2006] 6 Suppl. SCR 189; MaharashtraTubes Ltd. v. State Industrial & Investment Corporationof Maharashtra Ltd. and Anr.,(1993) 2 SCC 144 :[1993] 1 SCR 340; Narasimha Rao v. State of A.P.,(1969) 1 SCC 839 : [1970] 1 SCR 115; Sandeep andOrs. v. Union of India and Ors.(2016) 2 SCC 328 :[2015] 14 SCR 328; Dr. Fazal Ghafoor v. Principal,Osmania Medical College, Hyderabad and Ors., (1988)4 SCC 532, N.T.R. University of Health Science,Vijayawada v. G. Babu Rajendra Prasad and Anr.,(2003) 5 SCC 350 : [2003] 2 SCR 781; R.S. Raghunathv. State of Karnataka and Ors., [1991] Suppl. 1 SCR387; Sarwan Singh and Ors. v. Kasturi Lal, [1977] 2SCR 421, Sanwarmal Kejriwal v. Vishwa Co-operativeHousing Society Ltd. and Ors., [1990] 1 SCR 862, TheSouth India Corporation (P) Ltd. v. The Secretary, Boardof Revenue Trivandrum and Ors., [1964] 4 SCR 280,Dr. Fazal Ghafoor v. Principal, Osmania MedicalCollege, Hyderabad and Ors., (1988) 4 SCC 532; Dr.C. Surekha v. Union of India,AIR 1989 SC 44:(1988)4 SCC 526; M.P. Oil Extraction & Anr. v. State of M.P.& Ors., (1997) 7 SCC 592 : [1997] 1 Suppl. SCR 671;Usha Mehta v. Government of Andhra Pradesh,JohnVallamattom v. Union of India, (2003) 6 SCC 611 :[2003] 1 Suppl. SCR 638; General Manager,Uttranchal Jal Sansthan v. Laxmi Devi, (2009) 7 SCC205 : [2009] 9 SCR 791; State of West Bengal v.Debashish Mukherjee, AIR 2011 SC 3667 : [2011] 13SCR 1077; Mohan Kumar Singhania & Ors. v. Unionof India & Ors., (1992) Supp. 1 SCC 594 : [1991] 1Suppl. SCR 46; State of Kerala v. N.M. Thomas, (1976)2 SCC 310 :[1976] 1 SCR 906; K. Krishna Murthy(Dr.) & Ors. v. Union of India & Anr., (2010) 7 SCC202 : [2010] 6 SCR 972; R. Chitralekha v. State ofMysore, AIR 1964 SC 1823 : [1964] 6 SCR 368; AIIMSStudents Union v. A.I.I.M.S., JT 2001 (7) SC 12;Lingappa Pochanna Appelwar & Ors. v. State ofMaharashtra & Ors. (1985) 1 SCC 479 : [1985] 2 SCR224; Barium Chemicals v. Company Law Board AIR1967 SC 295 : [1966] Suppl. SCR 311; Jarnail Singh& Ors. v. Lachhmi Narain Gupta & Ors.,(2018) 10SCC 396 : [2018] 10 SCR 663 – referred to.

Case Law Reference

40SUPREME COURT REPORTS

[2020] 6 S.C.R.

CHEBROLU LEELA PRASAD RAO & ORS. v.STATE OF A.P. & ORS.

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 3609of 2002.

From the Judgment and Order dated 23.11.2001 of the High Courtof Judicature, Andhra Pradesh at Hyderabad in Writ Petition No. 20239of 2000.

With

C.A. No. 7040 of 2002.

ADr. Rajeev Dhawan, A. Aadinarayan Rao, R. Venkataramani,Sr. Advs., C.S.N. Mohan Rao, R. Santhaan Krishnan, Lokesh Sharma,Aditya Kumar Archiya, Ms. Sangeeta Chandra, Praveen Kumar Pandey,Anand Padmanabhan, G. Ramakrishna Prasad, Suyodhan Byrapaneni,Ms. Filza Moonis, Bharat J. Joshi, Ms. Tatini Basu, Mohd. Wasay Khan,G. V. R. Choudary, K. Shivraj Choudhuri, Harsh Singhal, Hitesh KumarBSharma, S. Udaya K. Sagar, Ms. Swati Bhardwaj, Mohith Rao, G. N.Reddy, T. Vijaya Bhaskar Reddy, Digvijay Harichandan, Ms. C. K.Sucharita, Hemal Kiritkumar Sheth, Shivam Singh, Harpreet Singh Gupta,Ms. Udita Singh, Lakshmi Raman Singh, John Mathew, M/s. VenkatPalwai Law Associates, Advs. for the appearing parties.

CThe Judgment of the Court was delivered by

ARUN MISHRA, J.

1.In the reference, the validity of the Government OfficeMs. No.3 dated 10.1.2000 issued by the erstwhile State of Andhra PradeshDproviding 100% reservation to the Scheduled Tribe candidates out ofwhom 33.1/3% shall be women for the post of teachers in the schools inthe scheduled areas in the State of Andhra Pradesh, is under challenge.

2.Several questions have been referred for consideration in theorder dated 11.1.2016. We have renumbered question nos.1(a)(b)(c)Eand (d) based on interconnection. The questions are as follows:

“(1) What is the scope of paragraph 5(1), Schedule V to theConstitution of India?

(a) Does the provision empower the Governor to make newlaw?

(b) Does the power extend to subordinate legislation?

(c) Can the exercise of the power conferred therein overridefundamental rights guaranteed under Part III?

(d) Does the exercise of such power override any parallel exerciseof power by the President under Article 371D?

(2) Whether 100% reservation is permissible under theConstitution?

(3) Whether the notification merely contemplates classificationunder Article 16(1) and not reservation under Article 16(4)?

(4) Whether the conditions of eligibility (i.e., origin and cut-offdate) to avail the benefit of reservation in the notification arereasonable?”

3.The facts in the backdrop project that by G.O.Ms. No.275 dated5.11.1986, issued by the Governor in exercise of power under para 5(1)of Schedule V to the Constitution of India, directing the posts of teachersin educational institutions in the scheduled tribe areas shall be reservedfor Scheduled Tribes only notwithstanding anything contained in any otherorder or rule or law in force. The Andhra Pradesh Administrative Tribunal(for short “the tribunal”) quashed the notification by order dated 25.8.1989.The order was questioned in this Court in C.A. Nos.2305-06/1991, whichwas dismissed as withdrawn on 20.3.1998.

4.Another G.O.Ms. No.73 dated 25.4.1987 was issued to amendGOMs. No.275 dated 5.11.1986 to allow the appointment of non-tribalsto hold the posts of teachers in the scheduled areas till such time thequalified local tribals were not made available. After that, non-tribalswho were appointed as teachers in the scheduled areas filed Writ PetitionNo.5276/1993 in the High Court of Andhra Pradesh at Hyderabad againsttermination of their services. The same was allowed vide judgment andorder dated 5.6.1996 and GOMs. No.73 dated 25.4.1987, and theadvertisements were held to be violative of Article 14 of the Constitutionof India. In writ appeal, the order of the Single Bench was set aside bythe Division Bench vide judgment and order dated 20.8.1997. The decisionin W.P. No.16198/1988 thus prevailed. The non-tribal appointeespreferred Civil Appeal 6437/1998 before this Court, which was allowedon 18.12.1998.

5.After this Court rendered the decision on 18.12.1998, theGovernment issued fresh notification vide GOMs. No. 3 dated 10.1.2000effectively providing for 100% reservation in respect of appointment tothe posts of teachers in the scheduled areas. The tribunal set aside theGOMs. Aggrieved thereby, writ petitions were filed in the High Court, a3-Judge Bench by majority upheld the validity of G.O. Aggrieved by thesame, the appeals have been preferred.

6.The majority view opined that historically scheduled areas weretreated specially, and affirmative action taken was in the constitutionalspirit. The notification was step for increasing literacy in the scheduledareas and also aimed at providing the availability of teachers in every

Aschool in the scheduled areas. 100% reservation can be sustained on theground that it was based on intelligible differentia, and the classificationhas nexus with the object sought to be achieved. The G.O. becamenecessary considering the phenomenal absenteeism of the teachers inthe schools situated in the scheduled areas and was step in aid topromote educational developments of tribals. In extraordinary situations,Breservation can exceed 50%. The Governor possessed the power toissue the impugned notification under Schedule V, para 5(1) of theConstitution. The same overrides all other provisions of the Constitution,including Part III of the Constitution of India.

7. The High Court in the minority view opined that providing 100%Creservation for Scheduled Tribes in scheduled areas offends the spirit ofArticles 14 and 16 of the Constitution of India. The Governor is notconferred power to make any law in derogation to Part III or otherprovisions of the Constitution of India in the exercise of his power underClause I, Para 5 of Schedule V. It was also held that G.O.Ms. No.3 is

Ddiscriminatory as the same adversely affects not only the open categorycandidates but also other Scheduled Castes, Scheduled Tribes, andbackward classes. It also opined that the reservation under Article 16(4)should not exceed 50%. However, little relaxation was permissible. Therules made under Article 309 of the Constitution could not be treated asan Act of Parliament or State Legislature.E

8.G.O.Ms. No.3 dated 10.1.2000, validity of which is questioned,reserved all posts in the educational institutions within the scheduledareas in favour of the local Scheduled Tribes. The order is extractedhereunder:

F“Whereas, under sub-paragraph (1) of paragraph 5 of the FifthSchedule to the Constitution of India, the Governor of AndhraPradesh may by public notification direct that any particular Actof Parliament or of Legislature of the State shall not apply to theScheduled Areas or any part thereof in the State or shall apply toa scheduled area or any part thereof subject to specified exceptionsGand modifications;

2. AND WHEREAS, in G.O.Ms.No.275, Social WelfareDepartment dated 5.11.1986, notification has been issuedexercising the powers conferred under sub-paragraph (1) ofparagraph 5 of the Fifth Schedule to the Constitution of India

directing that the posts of teachers in the Educational Institutionsin the Scheduled Areas of State shall be filled in only by the localmembers of the Scheduled Tribes;

3. AND WHEREAS, the Andhra Pradesh Administrative Tribunalin its order dated 25.8.1989 in R.P.Nos.6377 and 6379 of 1988quashed the orders issued in G.O.Ms.No.275, Social WelfareDepartment dated 5.11.1986 on the ground that the notificationissued under sub-paragraph (1) of paragraph 5 of the FifthScheduled to the Constitution of India does not reflect the existenceof either State or Central Legislation referable for issuingsuch notification;

4. AND WHEREAS, the Division Bench of the High Court ofAndhra Pradesh in its judgement dated 20-8-1997 in Writ AppealNo.874 of 1997 filed by the Project Officer, I.T.D.A.,Rampachodayaram, East Godavari District, directed to continuethe petitioners respondents in their respective posts of teacherswithout any break as temporary employees until replaced by thequalified local tribals as and when such tribals are available to fillup those posts;

5. AND WHEREAS, the Andhra Pradesh Administrative Tribunalsubsequentlywhile disposing of O.A.No.4598/97 in its orderdt.22.9.1997 directed the respondents to follow the statutory ruleswhile making recruitment to the posts of Secondary GradeTeachers and also Telugu Pandits, Grade. I in Agency Areaswithout taking into consideration of the orders issued inG.O.Ms.No.275, Social Welfare Department, dated 5.11.1986.

6. AND WHEREAS, the Supreme Court of India while allowingCivil Appeal No.6437/98 in its order dated 18th December 1998,set aside the orders of the Andhra Pradesh Administrative Tribunalon the ground that the State withdraw the appeals arising out ofthe S.L.P. Nos.14562-63 of 1989:

7. AND WHEREAS, the Government considers that rule 4 (b) ofthe Andhra Pradesh School Educational Subordinate Service Rules,1992 and rule 22A of the Andhra Pradesh State and SubordinateService Rules, 1996 shall be modified to the extent that onlyScheduled Tribe Women shall be appointed in Scheduled Areasagainst 33 1/3% reservation in respect of direct recruitment;

8. AND WHEREAS, the consultation of the Tribes AdvisoryCouncil has been made as required under sub-paragraph (5) ofparagraph 5 of the Fifth Schedule to the constitution of India.

9. AND WHEREAS, the Government of Andhra Pradesh in orderto strengthen the educational infrastructure in the Scheduled Areas,to promote educational development of Tribals, to solve thephenomenal absenteeism of Teachers in the Schools situated inScheduledAreas and with view to protect the interests of localtribals have decided to reserve the posts of teachers in favour oflocal Scheduled Tribes candidates;

10. AND WHEREAS, the Government considered to re-issuethe said orders retrospectively from 5.11.1986 keeping in viewthe provisions of sub-paragraph (1) of paragraph 5 of Fifth Scheduleto the Constitution;

11. The following notification will be published in part-IV-BExtraordinary issue of the Andhra Pradesh Gazette, dated10.1.2000.

NOTIFICATION

In exercise of the power conferred by subparagraph (1) ofparagraph 5 of the Fifth Schedule to the Constitution of India andin Supersession of the notification issued in G.O.Ms.No.275, SocialWelfare Department, dated the 5th November 1986, assubsequently amended in G.O. Ms. No.73, Social WelfareDepartment, dated the 25th April 1988, the Governor of AndhraPradesh hereby directs that sections 78 and 79 of the AndhraPradesh Education Act, 1982 (Act 1 of 1982) and sections 169,195 and 268 of the Andhra Pradesh Panchayat Raj Act, 1994(Act 13 of 1994) and rule 4 (a) of the Andhra Pradesh SchoolEducational Subordinate Service Rules issued in G.O.Ms.No.538Education (Ser. II) Department, dated the 20th November 1998and rule 22 and 22A of the Andhra Pradesh State and SubordinateService Rules, 1996 and any other rules made in this regard shallapply to the appointment of posts of teachers in schools situated,in the Scheduled areas in the State subject to the modification thatall the posts of teachers in the Schools situated in ScheduledAreasin the State of Andhra Pradesh shall be filled in by the localScheduled Tribe candidates only out of whom 33 1/3% shallwomen.

EXPLANATION:- For the purpose of this notification, the ‘LocalScheduled Tribe Candidate’ means, the candidate belonging tothe Scheduled Tribes notified as such under article 342 of theConstitution of India and the candidates themselves or their parentshave been continuously residing in the scheduled areas of theDistricts in which they are residents till to date since the 26thJanuary 1950.”

(emphasis supplied)

9.In the notification various provisions have been mentioned.Section 78 of the A.P. Education Act, 1982 provides for the constitutionof educational service. It confers power upon the Governor to makerules to regulate the classification, methods of recruitment, conditions ofservice, pay and allowances and discipline and conduct of the membersof the educational service. Section 79 inter alia deals with dismissal,removal, reduction in rank and suspension of the employees of privateinstitutions. Section 169 of the A.P. Panchayat Raj Act, 1994 deals withcreation of the posts of officers and employees of the Mandal Parishad,the method of recruitment and conditions of service. Section 195 of theA.P. Panchayat Raj Act, 1994, provides for creation of posts of officersand employees of Zilla Parishad, the method of recruitment, conditionsof service, etc. Section 268 of the said Act empowers the Governmentto make rules.

10.The Andhra Pradesh State and Subordinate Service Rules,1996 referred to in the notification were made by the State in exerciseof the power conferred under proviso to Article 309 of the Constitutionof India. Rule 22 of the Andhra Pradesh State and Subordinate ServiceRules, 1996 provides for reservation. Rule 22 is extracted hereunder:

“Special Representation (Reservation): (1) Reservation may bemade for appointments to service, class or category in favour ofScheduled Castes, Scheduled Tribes, Backward Classes, Women,Physically handicapped, Meritorious Sportsman, Ex-Servicemenand such other categories, as may be prescribed by the Governmentfrom time to time, to the extent and in the manner specifiedhereinafter in these rules or as the case may be, in the specialrules. The principle of reservation as hereinafter provided shallapply all appointments to service, class, or category.

(i) by direct recruitment, except where the Government by aGeneral or Special Order made in this behalf, exempt such service,class or category;

(ii) otherwise than by direct recruitment where the special ruleslay down specifically that the principle reservation in so far as itBrelates to Scheduled Castes and Scheduled Tribes only shall applyto such services, class, or category to the extent specified therein.

(2)(a) The unit of appointments for the purpose of this rule shallbe one hundred vacancies, of which, fifteen shall be reserved forscheduled for Scheduled Castes, six shall be reserved for ScheduledTribes, twenty-five shall be reserved for the Backward Classesand the remaining fifty-four appointments shall be made on thebasis of open competition and subject to Rule 22-A of these rules.

(e) Appointments under this rule shall be made in the order ofrotation specified below in unit of hundred vacancies.

Rule 22-A: Women reservation in appointments: Notwithstandinganything contained in these rules or special rules or Ad hoc Rules:

(1) In the matter of direct recruitment to posts for which womenare better suited than men, preference shall be given to women:

Provided that such absolute preference to women shall not resultEin total exclusion of men in any category of posts.

(2) In the matter of direct recruitment to posts for which womenand men are equality suited, there shall be reservation to womento an extent of 33 1/3 % of the posts in each category of OpenCompetition, Backward Classes (Group-A), Backward Classes

(Group-B), Backward Classes (Group-C), Backward Classes(Group-D), Scheduled Castes, Scheduled Tribes and PhysicallyHandicapped and Ex-Servicemen quota.

(3) In the matter of direct recruitment to posts which are reservedexclusively for being filled by women, they shall be filled by womenGonly.”

Six per cent reservation has been provided in the State forScheduled Tribes.

11.The A.P. Regulation of Reservation and Appointment to PublicHServices Act, 1997, was enacted to ensure that the reservation mandated

under Rule 22 is followed scrupulously. The Act intended to punish theofficers for violation of the rules of reservation. The Act did not provideany percentage of the reservation to the Scheduled Castes, ScheduledTribes, and the backward classes. The reservations were provided underRules 22 and 22A of the Rules framed under Article 309.

ARGUMENTS

12.It was submitted by Mr. C.S.N. Mohan Rao, Mr. G.Ramakrishna Prasad and Mr. G.V.R. Choudhary, learned counsel andother learned counsel for the appellants that the limited legislative poweris conferred on the Governor to modify the existing legislation made bythe Parliament or the State legislature under Para 5(1) of the FifthSchedule to the Constitution. The power to make regulation was conferredunder Para 5(2) of Schedule V. Under Para 5(1), there is no suchlegislative power. The earlier G.O.Ms. of 1986 was quashed. After that,the appeal preferred in this Court was withdrawn, and fresh G.O. wasissued, again perpetuating the illegality by providing 100% reservation.13.Learned counsel for the appellants argued that Article 371-Dof the Constitution contains special provisions concerning the State ofAndhra Pradesh, which has now been amended for Andhra Pradesh aswell as Telangana. After re-organisation of the States, the Article hasbeen amended in its application to Andhra Pradesh as well as Telangana.Article 371D was promulgated given the geographical disparities in thearena of public employment in the State of Andhra Pradesh as candidatesfrom certain districts were capturing disproportionately large numberof posts, as such by way of the Presidential Order issued under the saidprovisions, local cadres were created for different parts of the State.The Presidential Order provided for reservation on district/zonal basisfor different posts. district/zone as the case may constitute localarea. district is unit for teachers, and all the posts have been orderedto be filled by scheduled tribe candidates in the scheduled areas in severaldistricts.

14.Learned counsel for the appellants argued that as per thePresidential Order issued under Article 371D, aspiring candidates couldnot apply outside the district or zone, as the case may be. Thus, theincumbents cannot apply outside their districts where they are residing.Their chances of obtaining public employment as against the posts ofteachers have been taken away. Thus, the G.O. transgresses the

APresidential Order issued under Article 371-D of the Constitution assuch the same is unconstitutional and could not prevail.

15.Learned counsel for the appellants further argued that providing100% reservation is not permissible because of the catena of decisionsrendered by this Court, to be referred later. Learned counsel vehementlyBargued that it is an unfortunate reality that the law-makers are resortingto reservations on political basis catering to vote-bank, thereby ignoringthe constitutional mandate to which they owe allegiance. The reservationso provided is against the wishes of the founding fathers of theConstitution. The reason employed of chronic absenteeism in the schools,could not have been made the fulcrum justifying 100% reservation. MeritChas been ignored and whittled down. The noble profession of teachingcannot be demeaned. There cannot be compromise with the standardof education in the garb of cent percent reservation, and merit is acasualty. It tantamounts to reverse discrimination. It cannot be said tobe case of classification, but it is case of reservation. It is highly

Dunfair and unreasonable action. The Constitution of India does not permit100% reservation in respect of any particular class or category to thetotal exclusion of others. Reservation set out under Article 16 should notexceed the limit of 50%.

16.The G.O. would be counter-productive to the aim of theEConstitution in providing protective legislation, and the main thrust of thereservation is to bring in the disadvantaged classes into the mainstreamof the society at large. The idea of the tribal students to be taught bytribal teachers in the scheduled areas is akin to compromising with themerit and quality of education and further put the tribal children at adisadvantage and segregate them from the mainstream. Regarding theFlanguage barrier, learned counsel argued that qualifications for teacherscould be provided that they should know the local language, resident ofa district invariably knows the local language. In the impugned notification,no such aspect was mentioned.

17.Learned counsel on behalf of the appellants further arguedGthat Rules 22 and 22A of the Andhra Pradesh State and SubordinateService Rules, 1996 provides for reservation framed under proviso toArticle 309 of the Constitution. The legislature did not frame them. Thus,it could not have been amended or modified by the Governor in exerciseof the power under Para 5(1) of Schedule V to the Constitution beingHsubordinate legislation. That apart, it was argued that no new law could

have been created within the realm of Para 5(1) of Schedule V. TheActs mentioned in G.O.Ms. No.3/2000 did not deal with reservation.The Act of 1997, provided for the reservation, was not amended. Evenby amending the same, 100% reservation could not have been provided.

18.The classification created within the scheduled tribes to benefitonly the candidates or their parents continuously residing in the scheduledareas since 26.1.1950 is arbitrary, illegal, and discriminatory vis-à-visthe scheduled tribes also, besides other categories. The executive ordercould not have provided the reservation. The legislation was imperativeto provide for 100% reservation. Testing the case on the anvil of thedoctrine of basic structure is not germane as it is not case set up thatprovisions under Para 5 of Schedule V are against the basic structure ofthe Constitution. The provisions of Para 5 of Schedule V are notquestioned, but only the legality of the action taken thereunder. The rightof judicial review is available in case of any action taken, which is per seillegal, arbitrary or violative of fundamental rights and sans any basis.

19.Concerning the non-obstante clause, it was argued that theorder under Para 5 of Schedule V could not have been issued incontravention of Article 371D.It contravened the Presidential order.

20.Dr. Rajeev Dhawan, learned senior counsel appearing for therespondents, argued that the Constitution has solicitude for scheduledcastes and scheduled tribes under various provisions contained in Articles15 and 16 and the Directive Principles contained in Articles 37, 38, 47and 51(A). There are special provisions carved out providing reservationto SCs/ STs; there is National Commission for Scheduled Tribes, Article330 provides reservation of seats for SC/ ST in House of People, Article332 provides reservation in State Assemblies, Article 335 provides toconsider the claim of SCs/STs to services, Article 338 provides for theconstitution of National Commission for Scheduled Castes and Article338A provides for the constitution of National Commission for ScheduledTribes. Articles 339, 341, 342 and 334, are other provisions relating toSCs/ STs. Articles 343D and 343(T)(h) provide reservation for SC/STin Panchayats.

21.Learned senior counsel further argued that India’s Constitutionis symmetrical and spatial for SCs/STs. In that view, the scheduled areasare constituted under the provisions of Article 244 and Schedules V andVI. The Constitution creates special classification. Equality is concept

Aof anti-arbitrariness. The normal rule of 50% reservation can be relaxedin appropriate cases that have precisely been done by the Governor.Reservation can be made by executive order. Reservations cannot betermed to be anti-meritarian. He urged that the reservations wereprovided due to discrimination, disadvantage, and to share the State power.Elaborately referred to the decision in Indra Sawhney &Ors. v. UnionBof India &Ors., (1992) Supp. 3 SCC 217, it was argued that reservationscould be rectified/revised. It is not permissible to sub-divide the SCs andSTs. Article 16(4) aims at group backwardness. Strictly speaking, theconstitution of Commission to enquire is not necessary for providingfurther reservations, particularly for scheduled tribes in the scheduledCareas. The scope of judicial review is limited in such matters. He referredto various dictums to be adverted to later.22.Dr. Rajeev Dhawan, learned senior counsel, lastly argued thatG.O.Ms. No.3/2000 is constitutionally valid, and the Court may, if soadvised, issue directions to the States to maintain oversight. The purposesDof Article 371D and Para 5 of Schedule V are entirely different. Hefurther argued that to trickle down the necessary benefits, the remedylies in following what is inelegantly called the “bottoms up” approach.The malady can be addressed by empowering Gram Sabhas, ensuringthe right to information, and strengthening its implementation. Learnedsenior counsel alternatively argued that in case this Court concludes thatEthe G.O. is to be quashed, the appointments made should not be disturbed.

23.Shri R. Venkataramani, learned senior counsel appearing forthe State of Andhra Pradesh, argued that the scheme of Schedule V, asa whole, deserves to be dealt with on special constitutional footing,that is an exclusive constitutional enclave, free in its ambit to ensure theFpromotion of the interests, concerns and the development of scheduledareas. Paras 2 and 5 of the Fifth Schedule constitute its essence. Para 2enacts limitations on the executive power of the State concerning thescheduled areas. Para 5 is composite and particular species of theenabling power, conferring on the Governor, legislative, and administrativeGpowers. The legislative and administrative powers run seamlessly. Forinstance, the power under clause (1) of Para 5 to extend Central orState legislation to the scheduled area, “subject to exceptions andmodifications,” confer power to amend the legislation. The power underclauses (1) and (2) operates in distinct fields to achieve distinct purposes,each of them wide in their way. The object to be achieved under clauseH

(1) is to evaluate and assess the relevance, fitness, or inappropriatenessof any law in their application to scheduled areas, the domain of policywith considerable latitude to bring into force with modifications andexceptions any law.

24.Shri R. Venkataramani, learned senior counsel further arguedthat the scheduled areas and the tribes constitute special class. Thisspecial homogenous class can always be dealt with on special basis.The G.O. was not issued to favour the local scheduled tribes or todiscriminate against others intentionally. It was passed to advance theeducational interests of the scheduled areas, even if it otherwise impingesupon the claims under Article 14 or 16(1), cannot be faulted. Even if theG.O. advances class interest, it cannot be subjected to scrutiny underArticles 14 and 16(1).

25.Shri R. Venkataramani further argued that there is no conflictbetween Article 371D and Schedule V. The two operate in distinct fieldsand achieve different purposes. The socio-economic experiments draftedby the legislatures, and in this case by the Governor, cannot be subjectedto judicial scrutiny. It is wrong to suggest that the non-obstante clause inArticle 371-D can annul the non-obstante clause in Para 5 of the FifthSchedule. Firstly, the two constitutional provisions operate in distinctdomains. Article 371-D was not enacted to be superimposition onSchedule V. Secondly, it is well settled that if the object and purpose oflegislation or provisions with respective non-obstante clauses are distinct,the Court would not see any conflict.

26.Shri R. Venkataramani, learned senior counsel, also arguedthat Schedule V is complete Code by itself. It is not case of reservationat all. It is classification made to ensure that the schools in the scheduledareas function and promote the educational interest of the tribal populace.The Governor took cognizance of the general non-availability of teachers.The notification by prescribing that the Scheduled Tribe teachers of thelocal areas should be the exclusive component of the teaching elementwas looking at the local scheduled tribe teacher as the best possible toolfor ensuring the educational interest of the scheduled areas. Learnedsenior counsel has referred to various decisions, to be adverted later.27.Learned senior counsel further pointed out that the scheduledarea is extended over 31,485 sq. km. which is about 11% of the totalarea of the State with more than 5938 villages distributed in Srikakulam,

AVizianagaram, Visakhapatnam, East Godavari, West Godavari, Khammam,Warangal, Adilabad and Mahaboobnagar Districts. Scheduled Tribestudents are at disadvantageous position. The non-attendance ofteachers was more in the scheduled areas, so to provide the facility ofteaching, classification has been made. It cannot be said to be case ofproviding reservations. The Government of Andhra Pradesh, DepartmentBof Tribal Welfare, has established various categories of educationalinstitutions to cater to the needs of Scheduled Tribes children in theState.

28. Learned senior counsel further submitted that the Governmentof Andhra Pradesh, Department of Tribal Welfare, established variousCcategories of educational institutions to cater to the needs of ScheduledTribes children in the State, such as GurukulaPathasalas, Ashram schools,and residential, educational institutions, and the method of appointmentof the local tribe has yielded good results.

29.Shri B. Adinarayana Rao, learned senior counsel appearingDfor the State of Telangana, pointed out the history of scheduled areasGanjam and Vizagapatnam. The Act of 1839 declared agency areas ofMadras Presidency, providing for separate administration of tribals/agencyareas. In 1874, the Scheduled Districts Act, XIV was passed, which hada schedule in which the territories were mentioned, inhabited by tribalsEas such. Rules were issued for administering the areas by the GovernorGeneral-in-Council to the exclusion of ordinary laws. The Governmentof India Act, 1919, had made “wholly excluded and partially excludedareas for reform” and kept them under the administration of GovernorGeneral-in-Council, with separate application of laws. The Governmentof India Act, 1935, had extended the same. Thus, historically, theFscheduled areas were governed by special laws. They cannot becompared with areas generally administered by the Act of legislatures.Special provisions have been made in Schedule V. The order issued bythe Governor has to be treated as legislation. The application of laws isone of the recognised forms of legislation. The order of Governor canGonly be tested on the parameters of competence and violation of theConstitution. It cannot be tested on the touchstone of ideal norms. Itachieves the purpose of Article 46 of the Constitution.

30.Shri B. Adinarayana Rao, learned senior counsel, has furtherargued that forests or hills separate scheduled areas from other areas.Notified tribes inhabit them. There are some non-tribals in the scheduledH

areas. In spite of their stay/residence, the non-tribals cannot acquire bysale, purchase, lease, or otherwise, the lands in the scheduled areas andlegislations imposing such restrictions have been held to be constitutionalby this Court in various decisions. The tribal customs, culture, traditions,and personal laws need to be protected and preserved. They speak theirdialect in their habitations. Due to inaccessibility and lack of facilities,the teachers appointed in scheduled areas are not attending the schools,leading to chronic absenteeism. The experiment has resulted in fulfillingthe desired objectives. There has been significant increase in literacyamong tribals.

There is no repugnancy with the Presidential Order issued underArticle 371D. Article 371D(10) provides for the non-obstante clause tomake the provisions immune from challenge under Articles 14 and 16 ofthe Constitution of India. The provisions made in Para 5 of Schedule Vhave to be viewed on similar anvil.

31.Shri Shivam Singh, learned counsel appearing on behalf ofsome of the respondents, argued that the basic structure doctrine isinapplicable, the original constitutional text must not be employed to testthe impugned action. Schedule V under Article 244(1) of the Constitutionis part of the original text. Hence, it must not be tested on the touchstoneof the basic structure violation. He argued by referring to the decisionsof this Court that the constitutional amendments post-1973 can be struckdown if they violate the basic structure doctrine and not the original textof the Constitution. The non-obstante clause in Para 5(1) Schedule Vcontinues to hold and occupy the field. The rigours of the basic structuredoctrine may hit Article 371-D but cannot affect Schedule V. Article 14cannot be used to defeat intendment of the non-obstante clause ofSchedule V.

32.Shri Shivam Singh, learned counsel, further argued that incase of conflict between non-obstante clauses, as far as possible, theymust be harmoniously construed. The provision enacted later prevailsover the one enacted earlier. If the latter provision is found to be genericas against the earlier provision, then the earlier provision has to prevail.

33.Learned counsel has further canvassed that as the Governorhas the power to frame the regulations, the power extends to subordinatelegislation also. Subordinate legislation has to be treated as part of thelegislation itself. Regulations must be treated as part of the statute itself.

AIn the power to modify and create exceptions in exceptionalcircumstances to provide 100% reservation is permissible. There isminimal scope for judicial review. The notification contemplated aclassification under Article 16(1) not reservation under Article 16(4)issued to provide impetus to scheduled areas in the field of education; tostrengthen educational infrastructure, to promote the educationalBdevelopment of tribals; to prevent phenomenal absenteeism of teachersin the schools in the scheduled areas from teaching tribals. The conditionsof eligibility and cut-off date to avail the benefit of reservation arereasonable to further strengthen the educational infrastructuredevelopment and other problems faced in the area.

CIn Re: Question No.1: What is the scope of Para 5(1) ofSchedule V of the Constitution of India?;and Question No.1(a):Does the provision empower the Governor to make new law?

34.The Fifth Schedule finds reference in Article 244 of theConstitution of India. Article 244 deals with the administration ofDscheduled areas and tribal areas. It is provided that the provisions ofSchedule V shall apply to the administration of scheduled areas. Article244 is extracted hereunder:

“Article 244. Administration of Scheduled Areas and TribalAreas.—(1) The provisions of the Fifth Schedule shall apply toEthe administration and control of the Scheduled Areas andScheduled Tribes in any State other than the States of AssamMeghalaya, Tripura, and Mizoram.

(2) The provisions of the Sixth Schedule shall apply to theadministration of the tribal areas in the State of Assam, Meghalaya,FTripura and Mizoram.”

35.Article 244 excludes Assam, Meghalaya, Tripura, and Mizoramfrom Schedule V, and they are included as per Article 244(2) in ScheduleVI. Schedule V in extenso is extracted hereunder:

“FIFTH SCHEDULEG

[Article 244(1)]

PROVISIONS AS TO THE ADMINISTRATION ANDCONTROL OF SCHEDULED AREAS ANDSCHEDULED TRIBES

PART

GENERAL

“1. Interpretation.—In this Schedule, unless the contextotherwise requires, the expression ‘State’ does not include theStates of Assam, Meghalaya, Tripura, and Mizoram.

2. Executive power of State in Scheduled Areas.—Subjectto the provisions of this Schedule, the executive power of Stateextends to the Scheduled Areas therein.

3. Report by the Governorto the President regarding theadministration of Scheduled Areas.—The Governor of eachState having Scheduled Areas therein shall annually, or wheneverso required by the President, make report to the Presidentregarding the administration of the Scheduled Areas in that Stateand the executive power of the Union shall extend to the giving ofdirections to the State as to the administration of the said areas.

PART

ADMINISTRATION AND CONTROL OFSCHEDULED AREAS AND SCHEDULED TRIBES

4. Tribes Advisory Council.—(1) There shall be established ineach State having Scheduled Areas therein and, if the Presidentso directs, also in any State having Scheduled Tribes but notScheduled Areas therein, Tribes Advisory Council consisting ofnot more than twenty members of whom, as nearly as may be,three-fourths shall be the representatives of the Scheduled Tribesin the Legislative Assembly of the State:

Provided that if the number of representatives of theScheduled Tribes in the Legislative Assembly of the State is lessthan the number of seats in the Tribes Advisory Council to befilled by such representatives, the remaining seats shall be filledby other members of those tribes.

(2) It shall be the duty of the Tribes Advisory Council toadvise on such matters pertaining to the welfare and advancementof the Scheduled Tribes in the State as may be referred to themby the Governor.

(3) The Governor may make rules prescribing or regulating,as the case may be,

(a) the number of members of the Council, the mode of theirappointment and the appointment of the Chairman of theCouncil and of the officers and servants thereof;

(b) the conduct of its meetings and its procedure in general; and

(c) all other incidental matters.

5. Law applicable to Scheduled Areas.—(1) Notwithstandinganything in this Constitution, the Governor may by public notificationdirect that any particular Act of Parliament or of the Legislatureof the State shall not apply to Scheduled Area or any part thereofin the State or shall apply to Scheduled Area or any part thereofin the State subject to such exceptions and modifications as hemay specify in the notification and any direction given under thissub-paragraph may be given so as to have retrospective effect.

(2) The Governor may make regulations for the peace and goodgovernment of any area in State which is for the time being aScheduled Area.

In particular and without prejudice to the generality of the foregoingpower, such regulations may—

(a) prohibit or restrict the transfer of land by or among membersof the Scheduled Tribes in such area;

(b) regulate the allotment of land to members of the ScheduledTribes in such area;

(c) regulate the carrying on of business as money-lender by personswho lend money to members of the Scheduled Tribes in sucharea.

(3) In making any such regulation as is referred to in sub-paragraph (2) of this paragraph, the Governor may repeal or amendGany Act of Parliament or of the Legislature of the State or anyexisting law which is for the time being applicable to the area inquestion.

(4) All regulations made under this paragraph shall besubmitted forthwith to the President and, until assented to by him,Hshall have no effect.

(5) No regulation shall be made under this paragraph unlessthe Governor making the regulation has, in the case where thereis Tribes Advisory Council for the State, consulted such Council.

PART

SCHEDULED AREAS

6. Scheduled Areas.—(1) In this Constitution, theexpression ‘Scheduled Areas’ means such areas as the Presidentmay by order declare to be Scheduled Areas.

(2) The President may at any time by order—

(a)direct that the whole or any specified part of aScheduled Area shall cease to be Scheduled Areaor part of such an area;

(aa) increase the area of any Scheduled Area in Stateafter consultation with the Governor of that State;]

(b)alter, but only by way of rectification of boundaries,any Scheduled Area;

(c)on any alteration of the boundaries of State or onthe admission into the Union or the establishment ofa new State, declare any territory not previouslyincluded in any State to be, or to form part of, aScheduled Area;

(d)rescind, in relation to any State or States, any orderor orders made under this paragraph, and inconsultation with the Governor of the State concerned,make fresh orders redefining the areas which are tobe Scheduled Areas,

and any such order may contain such incidental and consequentialprovisions as appear to the President to be necessary and proper,but save as aforesaid, the order made under sub-paragraph (1) ofthis paragraph shall not be varied by any subsequent order.

PART

AMENDMENT OF THE SCHEDULE

7. Amendment of the Schedule.—(1) Parliament may fromtime to time by law amend by way of addition, variation or repeal

Aany of the provisions of this Schedule and, when the Schedule isso amended, any reference to this Schedule in this Constitutionshall be construed as reference to such Schedule as so amended.

(2) No such law as is mentioned in sub-paragraph (1) ofthis paragraph shall be deemed to be an amendment of thisBConstitution for the purposes of article 368.”

36.The State can exercise executive power in scheduled areas.However, the same is subject to the provisions of the Schedule. Para 3of Schedule V provides for the continuous interplay between the Governorand the President. The Governor has to send an Annual Report or at anyCtime whenever so required by the President. The Governor is bound toreport to the President regarding the administration of the scheduledareas, and in the exercise of executive power, the Union Governmentcan issue directions to State as to the administration of the scheduledareas.

D37.The object of para 5 of Schedule V is to establish an egalitariansociety and to ensure socio-economic empowerment to the ScheduledTribes as held in Samatha v. State of A.P. &Ors., (1997) 8 SCC 191thus:

“71. Thus, the Fifth and Sixth Schedules, an integral scheme ofEthe Constitution with direction, philosophy and anxiety is to protectthe tribals from exploitation and to preserve valuable endowmentof their land for their economic empowerment to elongate socialand economic democracy with liberty, equality, fraternity anddignity of their person in our political Bharat.”

F38.Para 4 of Schedule V to the Constitution of India provides forthe formation of Tribes Advisory Council for administration and controlof the scheduled areas and scheduled tribes. Para 4(2) enables theAdvisory Council to advise on such matters pertaining to the welfareand advancement of the scheduled tribes in the State as may be referredto them by the Governor. The Governor has the power to make rules,Gregulations as to the number of members of the Tribes Advisory Council,the mode of their appointment, conduct of meetings, and other incidentalmatters.

39.Para 5 of Schedule V deals with the law applicable to thescheduled areas. It containsa non-obstante clause and authorises theHGovernor to issue notification to the effect that any particular Act of

the Parliament or of the State Legislature shall not apply to scheduledarea or any part thereof. It also empowers the Governor to createexceptions and modifications as he may specify in the notificationconcerning the applicability of such Act of Parliament or legislature ofthe State. The Governor is empowered to issue notification giving itretrospective effect. It is apparent that the law contained in the Act canbe modified by the Governor or can be excluded in its application fromthe scheduled area or any part of it. Thereupon such Act, hence, of theParliament or the State Legislature can be applied with exceptions andmodifications to the scheduled area. Para 5(1) confers power upon theGovernor not concerning the only exclusion of Act of Parliament or theState but to modify or create exceptions.

(a) Para 5(1) of Schedule V does not confer upon Governor powerto enact law but to direct that particular Act of Parliament or theState Legislature shall not apply to scheduled area or any part thereofor shall apply with exceptions and modifications, as may be specified inthe notification. The Governor is not authorised to enact new Actunder the provisions contained in para 5(1) of Schedule V of theConstitution. Area reserved for the Governor under the provisions ofpara 5(1) is prescribed. He cannot act beyond its purview and has toexercise power within the four corners of the provisions.

(b) Para 5(2) of Schedule V deals with the power of the Governorto make regulations for the peace and good government in scheduledarea of State. The Governor has to obtain the advice of the TribesAdvisory Council in the matters pertaining to Para 5(2), if it has beenconstituted. The Governor is expressly authorised to prohibit or restrictthe transfer of land by any member of scheduled tribes and also regulatethe allotment of land to the members of the Scheduled Tribes in theScheduled Areas. Para 5(3) provides that while making any suchregulations as mentioned in Para 5(2), the Governor has the power torepeal or amend any Act of Parliament or the legislature of the State orany existing law which is for the time being applicable to the area inquestion, but that is for peace and good governance of the scheduledarea. The regulation made by the Governor to be effective is required tobe assented by the President. Prior assent of the President is mandatoryfor regulation to be put into effect. There is further rider on theregulatory power of the Governor provided by Para 5(5). In case TribesAdvisory Council has been constituted before making any regulation,

Athe Governor is duty-bound to consult such Council. No regulation canbe made without consultation with the Council in case it has been formed.

40.The Act of Parliament or the appropriate legislature applies tothe scheduled areas. The Governor has the power to exclude theiroperation by notification. In the absence thereof, the Acts of theBlegislature shall extend to such areas. In Jatindra v. Province of Bihar,(1949) FLJ 225, it was held that the power of the Governor under para5 is legislative power and Governor is empowered to change or modifythe provisions of the Act or the section as he deems fit by way of issuinga notification. The power under para 5(1) is limited to the application ofthe Governor’s decision to apply an Act or making modification or creatingCexceptions. Though the power is legislative to some extent, that is confinedto applicability, modification, or creating exceptions concerning the Actof the Parliament or the State. While para 5(2) confers the power ofindependent legislation, the Governor has plenary power of framingregulations for the peace and good governance of scheduled area. HeDis the repository of faith to decide as to the necessity. The Governor isempowered by para 5(3) to repeal or amend any Act of Parliament orState Legislature,following the procedure prescribed therein, in exerciseof making regulations as provided under para 5(2) of Schedule V. Theaspect of power was considered in Ram Kirpal Bhagat and Ors. v.The State of Bihar, (1969) 3 SCC 471 thus:

“21. The second question which falls for consideration is whetherthe Bihar Regulation I of 1951 is in excess of the Governor’spowers. The contentions were: first, that the Regulation I of 1951could not at all have been made; secondly, that Regulations dealwith the subject-matter and did not mean power to apply law andFthirdly, the power to extend law passed by another legislaturewas said to be not legislative function, but was conditionallegislature. The legislation, in the present case, is in relation towhat is described as Scheduled Areas. The Scheduled Areas aredealt with by Article 244 of the Constitution and the Fifth ScheduleGto the Constitution. Prior to the Constitution, the excluded areaswere dealt with by Sections 91 and 92 of the Government of IndiaAct, 1935. The excluded and the partially excluded areas wereareas so declared by order in Council under Section 91 and underSection 92. No act of the Federal Legislature or of the ProvincialLegislature was to apply to an excluded or partially excluded

area unless the Governor by public notification so directed. Sub-section (2) of Section 92 of the Government of India Act, 1935conferred power on the Governor to make regulations for thepeace and good government of any area in Province which wasan excluded or partially excluded area and any regulations somade might repeal or amend any Act of the Federal Legislatureor the Provincial Legislature or any existing Indian law whichwas for the time being applicable to the area in question. Theextent of the legislative power of the Governor under Section 92of the Government of India Act, 1935 in making regulations forthe peace and good government of any area conferred on theGovernor in the words of Lord Halsbury “an utmost discretion ofenactment for the attainment of the objects pointed to.” (See Rielv. Queen, LR 10 AC 657 at 658)). In that case the words whichfell for consideration by the Judicial Committee were “the powerof the Parliament of Canada to make provisions for theadministration, peace, order and good government of any territorynot for the time being included in any province”. It was contendedthat if any legislation differed from the provisions which in Englandhad been made for the administration, peace, order and goodgovernment then the same could not be sustained as valid. Thatcontention was not accepted. These words were held to embracethe widest power to legislate for the peace and good governmentfor the area in question.22. The Fifth Schedule to the Constitution consists of 7 paras andconsists of Parts A, B, and D. Para 6 in Part deals withScheduled Areas as the President may by order declare and thereis no dispute in the present case that the Santhal Parganas fallswithin the Scheduled Areas. Para 5 in the Fifth Schedule dealswith laws applicable to Scheduled Areas. Sub-para 2 of para 5enacts that the Governor may make regulations for the peace andgood government of any area in State which is for the timebeing Scheduled Area. Under sub-para 3 of para 5, the Governormay repeal or amend any Act of Parliament or of the legislatureof the State or any existing law which is for the time beingapplicable to the area in question. It may be stated that contentionwas advanced by counsel for the appellants that Section 92 of theGovernment of India Act, 1935 was still in operation and theGovernor could only act under that section. This contention is

Autterly devoid of any substance because Section 92 of theGovernment of India Act, 1935 ceased to exist after repeal of theGovernment of India Act, 1935 by Article 395 of the Constitution.It was contended that the power to make regulations did not conferpower on the Governor to apply any law. It was said that underSection 92 of the Government of India Act, 1935 the GovernorBcould do so but under the Fifth Schedule of the Constitution theGovernor is not competent to apply laws. This argument is withoutany merit for the simple reason that the power to make regulationsembraces the utmost power to make laws and to apply laws.Applying law to an area is making regulations which are laws.CFurther the power to apply laws is inherent when there is powerto repeal or amend any Act, or any existing law applicable to thearea in question. The power to apply laws is really to bring intolegal effect sections of an Act as if the same Act had been enactedin its entirety. Application of laws is one of the recognised formsof legislation. Law can be made by referring to statute or byDciting statute or by incorporating statute or provisions or partsthereof in piece of legislation as the law which shall apply.

23. It was said by Counsel for the appellants that the power toapply laws under the Fifth Schedule was synonymous withconditional legislation. In the present case, it cannot be said thatthe Bihar Regulation I of 1951 is either piece of delegatedlegislation or conditional legislation. The Governor had full powerto make regulations which are laws and just as Parliament canenact that piece of legislation will apply to particular State,similarly, the Governor under para 5 of the Fifth Schedule canapply specified laws to Scheduled area. The Bihar Regulation Iof 1951 is an instance of valid piece of legislation emanatingfrom the legislative authority in its plenitude of power and there isno aspect of delegated or conditional legislation.”

(emphasis supplied)

41.In Hota Venkata Surya Sivarama Sastry and Anr. v. Stateof Andhra Pradesh, (1962) 2 SCR 535: AIR 1967 SC 71, the questioncame up for consideration as to the power to apply the laws under para5(2). This Court opined that the power to repeal or amend is legislative,and the regulations made in exercise of this power, cannot be said to beHdelegated or conditional legislation. This Court held:

“(11) It was next contended that Regulation IV of 1951 was invalidas having outstepped the limits of the legislation permitted by Paras5(1) and (2) of the Fifth Schedule to the Constitution. It was saidthat if the Governor desired to enact law with retrospectiveeffect it must be law fashioned by himself, but that if he appliedto the Scheduled areas law already in force in the State, hecould not do so with retrospective effect. Reduced to simple terms,the contention merely amounts to this that the Governor shouldhave repeated in this Regulation the terms of the Abolition Actbut that if he referred merely to the title of the Act he could notgive retrospective effect to its provisions over the area to which itwas being applied. It is obvious that this contention was correctlynegatived by the High Court.”

42.Reliance has been placed on the decision in Edwingson Barehv. State of Assam and Ors., (1966) 2 SCR 770 in which the validity ofthe notification issued on 23.11.1964 was in question. By the notification,the Governor of Assam was pleased to create new Autonomous Districtto be called the Jowai District by excluding the Jowai Sub-Division ofthe United Khasi-Jaintia Hills District with effect from 1.12.1964 andaltered the boundaries. The notification was issued by the Governor inthe exercise of powers conferred on him by paragraph 1(3) of the SixthSchedule. This Court observed:

“It cannot, however, be disputed that as result of the modificationmade by the impugned notification, paragraph 20(2) has to bechanged. Paragraph 20(2), as it originally stood, describes in detailthe territories comprised in the United Khasi-Jaintia Hills District,and as result of the impugned notification, the said descriptionwill have to be modified, because the said District has now beensplit up into two Autonomous District. That, however, is changeconsequent upon the change made by the Governor by issuing theimpugned notification in exercise of the powers conferred on himby para 1(3). In our opinion, where the Governor makes changesby virtue of the powers conferred on him by para. 1(3) (c), (d),(e), (f) and (g), what follows is change in the internal compositionof the different items in Part of the table. The exercise of thesaid powers does not change, and in the present case it has notchanged, the total area comprised in Part A. What it purports todo is to change one item into two items of Autonomous Districts.

Since the power to bring about this change is expressly conferredon the Governor by paragraph 1(3)(c), (d), (e), (f) and (g), it is notunreasonable to hold that the exercise of the said power should,as in the present case, lead to consequential change in para20(2). Such change in para 20(2) is logical corollary of theexercise of the power conferred on the Governor by para 1(3)(c),(d), (e), (f) and (g).”

43.In Samatha v. State of A.P. &Ors., (1997) 8 SCC 191, thisCourt held that the executive power under Article 298 and legislativepower under Article 245 to dispose of Government property are subjectto Para 5 of Schedule V. The relevant portion is extracted hereunder:

“85. It is true, as contended by Shri Choudhary, that the Constitutionhas demarcated legislative, executive and judicial powers andentrusted them to the three wings of the State; in particular thePresident/Governor of the State is to exercise the executive powerin their individual discretion. It is not subject to legislative limitationsto be done in accordance with rules of business. In particular, thePresident/Governor is entrusted with the executive powercoextensive with the legislative power enumerated in the SeventhSchedule read with Article 245 of the Constitution. The executivepower especially conferred by the Constitution like the pleasuretenure or the power of pardoning convict are in our view, notapposite to the issue. The power of the executive Government inthat behalf has wisely been devised in the Constitution and is notsubject to any restriction except in accordance with theConstitution and the law made under Article 245 read with therelevant entry in the Seventh Schedule to the Constitution subjectto the Fifth Schedule when it is applied to Scheduled Area. Thepower of the Government to acquire, hold and dispose of theproperty and the making of contracts for any purpose conferredby Article 298 of the Constitution equally is coextensive with thelegislative power of the Union/State. However, Article 244(1) itselfspecifies that provisions of the Fifth Schedule shall apply to theadministration and control of the ScheduledAreas and ScheduledTribes in any State except the excluded areas specified therein.The legislative power in clause (1) ofArticle 245 equally is “subjectto the provisions of the Constitution” i.e. Fifth Schedule. Clause(1) of para 5 of Part of the Fifth Schedule applicable to Scheduled

Areas, adumbrates with non obstante clause that:“Notwithstanding anything in the Constitution, in other words,despite the power, under Article 298, the Governor may, by publicnotification direct that any particular Act of Parliament or of thelegislature of State shall not apply to Scheduled Area or anypart thereof in the State or shall apply to Scheduled Area or anypart thereof in the State, subject to such exceptions andmodifications as he may specify in the notification and any directiongiven under clause (1) of para 5, may be given so as to haveretrospective effect.” The executive power of the State is,therefore, subject to the legislative power under clause 5(1) ofthe Fifth Schedule. Similarly, sub-para (2) thereof empowers theGovernor to make Regulations for the peace and good governmentof any area in State which is for the time being ScheduledArea. In particular and without prejudice to the generality of theforegoing power, such Regulations may regulate the allotment ofland to members of the Scheduled Tribes in such area or mayprohibit or restrict the transfer of land under clause (a) by oramong the members of the Scheduled Tribes in such areas. Inother words sub-para 5(2) combines both legislative as well asexecutive power, clause 5(2)(a) and (c) legislative power andclause (b) combines both legislative as well as executive power.The word “regulation” in para 5(2)(b) is thus of wide import.”

(emphasis supplied)

In Samatha (supra), it was held that mining leases could not havebeen granted to non-tribals in the Scheduled Areas even concerningland belonging to the Government. This Court in the aforesaid decisiondealt with the prohibition on the transfer of immovable property situatedin Agency tracts by person, whether or not such person is memberof Scheduled Tribes or society composed solely of the members of theScheduled Tribes or by person including inter alia State Governmentor State Corporations. Transfer of Government land in Agency tracts bygranting mining lease in favour of non-tribal persons was null and void.In the said case, the tribals were granted patta in their favour forcultivation purposes, the said aspect made the entire difference, and theprohibition on lease came in the way of non-tribal, which was upheld bythis Court. The decision is to operate in different area. This Courtupheld similar restriction in Rajasthan Housing Board v. New PinkCity Nirman Sahkari Samiti Ltd. and Anr., (2015) 7 SCC 601.

A44.There is no dispute with the abovesaid proposition concerningthe protection of the transfer of land. Such provisions have been carvedout, and they have been held to be constitutionally valid. More or less,similar provisions exist virtually in all the States. In various States,transactions that took place relating to land of Scheduled Tribes werestatutorily annulled including decree or order of the court, and suchBtransactions have been declared to be void with retrospective effect andvalidity of the same was upheld by this Court. But the question here isnot of the protection of the land. The idea behind protection of land is toprotect tribals, as they are isolated, and in disadvantageous position sociallyas compared to non-tribals. Thus, protection has been conferred.

45.In re Art. 143 of the Constitution of India and Delhi Laws Act(1912) etc., AIR 1951 SC 332, the Court considered the word ‘modify’to mean alteration without radical transformation in the context in whichmodification was used,it did not involve any material alteration orsubstantial alteration. However, in the context of Article 370(1) of the

DConstitution of India in Puranlal Lakhanpal v. President of India&Ors., AIR 1961 SC 1519, the power is given to the President to effaceeffect of any provision of law altogether in its application to the State ofJammu & Kashmir. The Court observed thatpower to modify should beconsidered in its widest possible amplitude. This Court further consideredthe word ‘modify’ in the Oxford English Dictionary, Vol. VI, to meanEinter alia “to make partial changes in”; to change (as object) in respectof some of its qualities; to alter or vary without radical transformation”.Similar is the word ‘modification,’ which means the action of makingchanges in an object without altering essential nature. The Court alsoobserved that modify just means to alter or vary, extend, or enlarge thus:F

“(4) But even assuming that the introduction of indirect electionby this modification is radical alteration of the provisions of Art.81(1), the question still remains whether such modification isjustified by the word “modification” as used in Art. 370(1). Weare here dealing with the provision of Constitution which cannotGbe interpreted in any narrow or pedantic sense. The question thatcame for consideration in In re Delhi Laws Act case,1951 SCR747: (AIR 1951 SC 332), was with respect to the power ofdelegation to subordinate authority in making subordinatelegislation. It was in that context that the observations were madethat the intention of the law there under consideration when it

used the word “modification” was that the Central Governmentwould extend certain laws to Part States without any radicalalteration in them. But in the present case we have to find out themeaning of the word “modification” used in Art. 370(1) in thecontext of the Constitution. As we have said already the objectbehind enacting Art. 370(1) was to recognise the special positionof the State of Jammu and Kashmir and to provide for that specialposition by giving power to the President to apply the provisionsof the Constitution to that State with such exceptions andmodifications as the President might by order specify. We havealready pointed out that the power to make exceptions impliesthat the President can provide that particular provision of theConstitution would not apply to that State. If therefore the poweris given to the President to efface in effect any provision of theConstitution altogether in its application to the State of Jammuand Kashmir, it seems that when he is also given the power tomake modifications that power should be considered in its widestpossible amplitude. If he could efface particular provision of theConstitution altogether in its application to the State of Jammuand Kashmir, we see no reason to think that the Constitution didnot intend that he should have the power to amend particularprovision in its application to the State of Jammu and Kashmir. Itseems to us that when the Constitution used the word“modification” in Art. 370(1) the intention was that the Presidentwould have the power to amend the provisions of the Constitutionif he so thought fit in their application to the State of Jammu andKashmir. In the Oxford English Dictionary (Vol. VI) the word“modify” means inter alia “to make partial changes in; to change(as object) in respect of some of its qualities; to alter or varywithout radical transformation”. Similarly the word “modification”means “the action of making changes in an object without alteringits essential nature or character; the state of being thus changed;partial alteration”. Stress is being placed on the meaning “to alteror vary without radical transformation” on behalf of the petitioner;but that is not the only meaning of the words “modify” or“modification”. The word “modify” also means “to make partialchanges in” and “modification” means “partial alteration”. Iftherefore the President changed the method of direct election toindirect election he was in essence making partial change or

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Apartial alteration in Art. 81 and therefore the modification made inthe present case would be even within the dictionary meaning ofthat word. But, in law, the word “modify” has even widermeaning. In “Words and Phrases” by Roland Burrows, the primarymeaning of the word “modify” is given as “to limit” or “restrict”but it also means “to vary” and may even mean to “extend” orB“enlarge”. Thus in law the word “modify” may just mean “vary”i.e. amend; and when Art. 370(1) says that the President mayapply the provisions of the Constitution to the State of Jammu andKashmir with such modifications as he may by order specify itmeans that he may vary (i.e. amend) the provisions of theCConstitution in its application to the State of Jammu and Kashmir.We are therefore of opinion that in the context of the Constitutionwe must give the widest effect to the meaning of the word“modification” used in Art. 370(1) and in that sense it includes anamendment. There is no reason to limit the word “modifications”as used in Art. 370(1) only to such modifications as do not makeDany “radical transformation”. We are therefore of opinion thatthe President had the power to make the modification which hedid in Art. 81 of the Constitution. The petition therefore fails andis hereby dismissed with costs.”The Governor is conferred the power to modify or createEexceptions, is not in dispute. The power is wide but is confined to theActs of the Parliament or the State legislature. The power of the Governoris not only extensive but also sui generis, and as the court has to deferto legislative wisdom in areas of social and economic experimentation, italso defers to the wisdom of the Governor in the exercise of his powerFunder Para 5 of the Fifth Schedule.

46.In Bombay Dyeing & Mfg. Co. Ltd. (3) v. BombayEnvironmental Action Group & Ors., (2006) 3 SCC 434, the Courtreferred to the decision in Puranlal Lakhanpal (supra) and observed:

“243. Yet again in Puranlal Lakhanpal v. President of India, (1962)G1 SCR 688, it was stated: (SCR p. 693)

“[T]he word ‘modification’ means ‘the action of makingchanges in an object without altering its essential nature orcharacter …’.”

47.In Puranlal (supra), the Court observed that modification inArticle 370(1) must be given the widest effect in the context of theConstitution, and in that sense, it cannot include such limitations as donot make any radical transformation. In S.K. Gupta & Anr. v. K.P. Jain&Anr., (1979) 3 SCC 54, the term “modification” came up forconsideration. The Court held that it would include the making of additionsand omissions. In the context of Section 392, “modification” would meanaddition to the scheme of compromise and/or arrangement or omissiontherefrom solely to make it workable. The court observed thus:

“26. According to the definition, “modify” and “modification” wouldinclude the making of additions and omissions. In the context ofSection 392, “modification” would mean addition to the schemeof compromise and/ or arrangement or omission therefrom solelyfor the purpose of making it workable. Reading Section 392 bysubstituting the definition of the word “modification” in its place,if something can be omitted or something can be added to schemeof compromise by the Court on its own motion or on the applicationof person interested in the affairs of the company for the properworking of the compromise and/or arrangement, we see nojustification for cutting down its meaning by process ofinterpretation and thereby whittle down the power of the Court todeal with the scheme of compromise and/or arrangement forthe purpose of making it workable in course of its continuedsupervision as ordained by Section 392(1).”

48.Para 5(1) of Schedule V to the Constitution confers powerupon the Governor to exclude law, which is applicable in scheduledarea. It also empowers the Governor to apply the same with exceptionsand modifications as he deems fit. However, the power to exclude anarea from applicability, modification, and to create exceptions in the law,which was applicable in the area, cannot be said to be at par to theregulation-making power conferred under para 5(2) of the said Rules.Meaning of the expressions ‘exception’ and ‘modification’ is as follows:

“exception • n. person or thing that is excepted or thatdoes not follow rule. Ø the action or state of excepting or beingexcepted.”

“modification • n. the action of modifying. Ø changemade.”

(Source: Concise Oxford English Dictionary, 10[th]Edn. Revised)

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A49.The exceptions and modifications are created by the law, whichis already applicable in the area. It is not the formulation of new lawwhich is contemplated under Para 5(1) of Schedule V. No new law canbe formulated while exercising power under Para 5(1) of Schedule V.The power of modification cannot extend to re-writing the entire statute.The power cannot be used to supplant the law, which is applicable. TheBlaw has to be applied only with exceptions or modifications. It cannottotally supersede the existing law, which is wholly opposed to the idea ofapplicable law as in that case it would tantamount to the new law andnot the modification or exception or creation of exceptions or modificationsto the applicable law. The object and substance of law applicable cannotCbe changed within the purview of Para 5(1), though the applicability ofapplicable law can be excluded. In case the Governor decides the law toremain applicable, he has the power only to create exceptions and tomodify the same, not to create new one juxtaposed to the sameapplicable law.D50.The A.P. Regulation of Reservation and Appointment to PublicServices Act, 1997, deals with reservation in the State in the field ofpublic services. G.O. Ms. No.3 of 2000 did not amend the said Act. Theprovisions of the other Acts mentioned in the notification did not dealwith the extent of reservation. Sections 78 and 79 of the A.P. EducationAct, 1982 and Sections 169, 195, and 268 of the A.P. Panchayati RajEAct, 1994, are not related to reservation. The rules were framed underthe proviso to Article 309. They were not framed under the main provisionby the legislature. The Governor in the exercise of power under Para5(1) of Schedule V could have amended the Public Services Act, 1997,or direct it not to apply to Scheduled Areas. The creation of 100 per centFreservation had the effect of making new law under Para 5(1) withoutreference to the Act of State or Central legislation. Independently ofthat power could not be exercised within the purview of Para 5(1) ofSchedule V to the Constitution of India. Even otherwise, even if the Actof 1997 would have been modified by the Governor, 100% reservationcould not have been provided.G

51.We are of the opinion that the Governor’s power to makenew law is not available in view of the clear language of Para 5(1), FifthSchedule does not recognise or confer such power, but only power is notto apply the law or to apply it with exceptions or modifications. Thus,notification is ultra vires to Para 5(1) of Schedule V of the Constitution.H

In Re: Question No.1(b): Does the power extend tosubordinate legislation?

52.G.O. Ms. No.3/2000 refers to various provisions and Sections78 and 79 of the A.P. Education Act, 1982. There is also reference tosections 169, 195, and 268 of the A.P. Panchayat Raj Act, 1994. Noneof the aforesaid provisions deals with reservation of posts. The thirdreference is about the A.P. State and Subordinate Service Rules, 1996,which were framed in exercise of the powers conferred by the provisoof Article 309 of the Constitution of India. Rule 22 of A.P. State andSubordinate Services Rules, 1996, deals with reservation. The rules havebeen framed under proviso to Article 309 of the Constitution.

53.The Andhra Pradesh Regulation of Reservation andAppointment to Public Services Act, 1997, was enacted to providereservations. It mandatesto ensure that reservation provided under Rule22 is followed scrupulously, and the provisions made in the rules are notviolated. In the A.P. Regulation of Reservation and Appointment Act,the percentage of reservation has not been provided to respectiveScheduled Castes, Scheduled Tribes and Backward classes.

54.Rules 22 and 22A, which provide for reservation for ScheduledCastes, Scheduled Tribes, backward classes and women have beenframed under the proviso to Article 309 of the Constitution of India.They are not to partake with an Act of Parliament or State legislature.

In substance, Rules 22 and 22A framed under Article 309 havebeen amended, which could not have been done as that is not the Act ofthe Parliament or the legislature of the State. Thus, the Governor couldnot have exercised power concerning rule framed under the proviso toArticle 309 of the Constitution.

55.In B.S. Yadav & Ors. v. State of Haryana &Ors., AIR 1981SC 561, this Court held that the rule made by the Governor under theproviso is also the law but, at the same time, it cannot be said in view ofthe aforesaid decision that the Parliament or the State legislature madethe rules under the proviso to Article 309 of the Constitution.

56.Learned counsel on behalf of the State argued that Para 5(1)of Schedule V empowers the Governor to make laws, and it is legislativefunction, and any order of the Governor shall be treated as legislation.The impugned order shall have to be treated as legislation and can onlybe tested on the parameters of competence and violation of the

AConstitution. It cannot be tested on the touchstone of ideal norms. Reliancehas been placed on Natural Resources Allocation, In re, SpecialReference No.1 of 2012, (2012) 10 SCC 1 in which the Court opined:

“112. Equality, therefore, cannot be limited to mean only auction,without testing it in every scenario. InState of W.B. v. Anwar AliSarkar, AIR 1952 SC 75, this Court, quoting from Kotch v. RiverPort Pilot Commissioners, 91 L Ed 1093: 330 US 552 (1947) hadheld that: (Anwar Ali Sarkar case, AIR 1952 SC 75, AIR p. 80,para 10)

“10. … ‘The constitutional command for State to affordequal protection of the laws sets goal not attainable by theinvention and application of precise formula. This Court hasnever attempted that impossible task.’”

One cannot test the validity of law with reference to the essentialelements of ideal democracy, actually incorporated in theConstitution. (See Indira Nehru Gandhi v. Raj Narain, 1975Supp SCC 1) The courts are not at liberty to declare statutevoid, because in their opinion, it is opposed to the spirit of theConstitution. The courts cannot declare limitation or constitutionalrequirement under the notion of having discovered some idealnorm. Further, constitutional principle must not be limited to aprecise formula but ought to be an abstract principle applied toprecise situations. The repercussion of holding auction as aconstitutional mandate would be the voiding of every action thatdeviates from it, including social endeavours, welfare schemesand promotional policies, even though CPIL itself has arguedagainst the same, and asked for making auction mandatory onlyin the alienation of scarce natural resources meant for privateand commercial business ventures. It would be odd to deriveauction as constitutional principle only for limited set ofsituations from the wide and generic declaration of Article 14.The strength of constitutional adjudication lies in case to caseadjudication and therefore auction cannot be elevated to aconstitutional mandate.”

The submission that the order of the Governor shall be treated aslegislation and has to be tested like legislation cannot be disputed.However, when it comes to modification or exception, concerning the

Act of Parliament or the State legislature, we cannot add subordinatelegislation in the ken of Para 5(1). The Governor can make decisionnot to apply Parliamentary law or State law to scheduled areas andmodify such law.

57.The rules framed under the proviso to Article 309 of theConstitution cannot be said to be the Act of Parliament or State legislature.Though the rules have the statutory force, they cannot be said to havebeen framed under any Act of Parliament or State legislature. The rulesremain in force till such time the legislature exercises power. The powerof the Governor under Para 5(1) of Schedule V of the Constitution isrestricted to modifying or not to apply, Acts of theParliament or legislatureof the State. Thus, the rules could not have been amended in the exerciseof the powers conferred under Para 5(1) of Schedule V. The rules madeunder proviso to Article 309 of the Constitution cannot be said to be anenactment by the State legislature. Thus, in our opinion, it was not opento the Governor to issue the impugned G.O. No.3/2000.

In re: Question No.1(c): Can the exercise of the powerconferred in Para 5 of the Fifth Schedule override fundamentalrights guaranteed under Part III?

58.Manifold arguments are made in this regard. Firstly, it wasargued on behalf of the respondents that the basic structure doctrine isinapplicable upon the Constitution’s original text. It must not be employedto test the validity of the impugned action. The fifth Schedule underArticle 244(1) of the Constitution is part of the original text, and hence,it must not be tested under the Basic Structure Doctrine. Reliance hasbeen placed on Kesavananda Bharti v. State of Kerala, (1973)4 SCC225 in which this Court laid down that Constitutional amendments post-1973 can be struck down if they violate the Basic Structure Doctrine.

59.Reliance has also been placed on Waman Rao and Ors. v.Union of India and Ors., (1981) 2 SCC 362, in which this Court opinedthus:

“49. We propose to draw line, treating the decision inKesvananda Bharati, (1973) 4 SCC 225, as the landmark. SeveralActs were put in the Ninth Schedule prior to that decision on thesupposition that the power of Parliament to amend the Constitutionwas wide and untrammelled. The theory that the Parliament cannotexercise its amending power to damage or destroy the basic

structure of the Constitution was propounded and accepted forthe first time in Kesavananda Bharati, (1973) 4 SCC 225, is onereason for upholding the laws incorporated into the Ninth Schedulebefore April 24, 1973, on which date the judgment in KesavanandaBharati, (1973) 4 SCC 225, was rendered. large number ofproperties must have changed hands, and several new titles musthave come into existence on the faith and belief that the lawsincluded in the Ninth Schedule were not open to challenge on theground that they were violative of Articles 14, 19 and 31. Wewould not be justified in upsetting settled claims and titles and inintroducing chaos and confusion into the lawful affairs of fairlyorderly society.

50. The second reason for drawing line at convenient andrelevant point of time is that the first 66 items in the Ninth Schedule,which were inserted prior to the decision in KesavanandaBharati, (1973) 4 SCC 225, mostly pertain to laws of agrarianreforms. There are few exceptions amongst those 66 items, likeItems 17, 18, 19, which relate to Insurance, Railways and Industries.But almost all other items would fall within the purview of Article31-A(1)(a). In fact, Items 65 and 66, which were inserted by the29th Amendment, are the Kerala Land Reforms (Amendment)Acts of 1969 and 1971 respectively, which were specificallychallenged in Kesavananda Bharati, (1973) 4 SCC 225. Thatchallenge was repelled.51. Thus, insofar as the validity of Article 31-B read with theNinth Schedule is concerned, we hold that all Acts and Regulationsincluded in the Ninth Schedule prior to April 24, 1973 will receivethe full protection of Article 31-B. Those laws and regulationswill not be open to challenge on the ground that they are inconsistentwith or take away or abridge any of the rights conferred by anyof the provisions of Part III of the Constitution. Acts andRegulations, which are or will be included in the Ninth Scheduleon or after April 24, 1973 will not receive the protection of Article31-B for the plain reason that in the face of the judgment inKesavananda Bharati, (1973) 4 SCC 225, there was nojustification for making additions to the Ninth Schedule with aview to conferring blanket protection on the laws included therein.The various constitutional amendments, by which additions were

made to the Ninth Schedule on or after April 24, 1973, will bevalid only if they do not damage or destroy the basic structure ofthe Constitution.”

(emphasis supplied)

60.Reliance has also been placed on the decision of this Court inI.R. Coelho (Dead) by LRs. v. State of T.N., (2007) 2 SCC 1, decidedby nine-Judge Bench of this Court thus:

“151. The effect of the application of the limitation of the basicstructure to scheduled Act is that Article 31-B read with theNinth Schedule is no longer not subject to judicial review. Judicialreview is, therefore, very much present.”

Thus, it was urged that since the original text of the Constitution iscontained in the Fifth Schedule, it would not be permissible to test thesame in terms of the basic structure. Article 14is the part of the basicstructure; therefore, it cannot be used to dilute the non-obstante clauseof Para 5(1) of Fifth Schedule, and action taken thereunder cannot betested on the anvil of violation of fundamental rights.

61.In our opinion, the submission based on Basic StructureDoctrine is not at all germane to the instant case to decide the validity ofthe provisions contained in Para 5 of Fifth Schedule of the Constitutionor validity of any other Constitutional amendment. We are deciding thevalidity of the action of the Governor issuing impugned notification,providing 100 per cent reservation to Scheduled Tribes in the ScheduledAreas. Every action of the legislature, whether it is Parliament or State,has to conform with the rights guaranteed in Part III of the Constitution.The original scheme of the Constitution itself so provides; thus, theargument based upon Basic Structure Doctrine does not hold the validityof the notification as that action is taken under the provisions, and theprovisions in Para 5 Schedule V do not override the rights guaranteed inPart III of the Constitution. The limitations on the legislature in the fieldof legislation are applicable to Governor also.

62. It was next argued that there is absolute discretion with theGovernor to make modification and exception as to the applicability oflaws; however, absolute discretion cannot be said to be exercisablearbitrarily. The Constitution has not conferred any arbitrary poweronany constitutional functionary. Arbitrariness is an antithesis to the conceptof equality, which is enshrined in Article 14 of the Constitution, and thesame is its spirit and soul.

63.The provisions of the Constitution are required to be interpretedkeeping in view the will of the makers thereof as held in S.R. Chaudhuriv. State of Punjab &Ors., (2001) 7 SCC 126 thus:

“33. Constitutional provisions are required to be understood andinterpreted with an object-oriented approach. Constitution mustnot be construed in narrow and pedantic sense. The words usedmay be general in terms but, their full import and true meaninghave to be appreciated considering the true context in which thesame are used and the purpose which they seek to achieve.Debates in the Constituent Assembly referred to in an earlier partof this judgment clearly indicate that non-member’s inclusion inthe Cabinet was considered to be “privilege” that extends onlyfor six months, during which period the member must get elected,otherwise he would cease to be Minister. It is settled positionthat debates in the Constituent Assembly may be relied upon asan aid to interpret constitutional provision because it is thefunction of the court to find out the intention of the framers of theConstitution. We must remember that Constitution is not just adocument in solemn form, but living framework for theGovernment of the people exhibiting sufficient degree of cohesionand its successful working depends upon the democratic spiritunderlying it being respected in letter and in spirit. The debatesclearly indicate the “privilege” to extend “only” for six months.”

64.The very concept of equality, which is sought to be achievedby protective discrimination, is not just matter of classification but alsoaims against arbitrariness. Equality is the antithesis of arbitrariness. InCol. A.S. Iyerand Ors. v. V. Balasubramanyam, (1980) 1 SCC 634,the Court as to the doctrine of classification observed:

“57. x xx This tendency, in an elitist society with diehard castementality, is disservice to our founding faith, even if judiciallysanctified. Subba Rao, J., hit the nail on the head when hecautioned in Lachhman Das v. State of Punjab, (1963) 2 SCR353, 395: AIR 1963 SC 222:

“The doctrine of classification is only subsidiary ruleevolved by courts to give practical content to the saiddoctrine. Over-emphasis on the doctrine of classificationor an anxious and sustained attempt to discover some basisfor classification may gradually and imperceptibly deprive

the article of its glorious content. That process wouldinevitably end in substituting the doctrine of classificationfor the doctrine of equality; the fundamental right to equalitybefore the law and the equal protection of the laws may bereplaced by the doctrine of classification.”

65.In Ajay Hasia and Ors. v. Khalid Mujib Sehravardi andOrs., (1981) 1 SCC 722, the Court considered the doctrine of classification.The classification is not only to be reasonable;it must satisfy the requisiteconditions. Whenever there is arbitrariness in State action, whether it beof the legislature or the executive or authority under Article 12, theprovisions of Article 14 immediately springs into action to strike downsuch an action. The Court held:

“16. If the Society is an ‘authority’ and therefore ‘State’ withinthe meaning of Article 12, it must follow that it is subject to theconstitutional obligation under Article 14. The true scope and ambitof Article 14 have been the subject-matter of numerous decisions,and it is not necessary to make any detailed reference to them. Itis sufficient to state that the content and reach of Article 14 mustnot be confused with the doctrine of classification. Unfortunately,in the early stages of the evolution of our constitutional law, Article14 came to be identified with the doctrine of classification becausethe view was taken was that that article forbids discriminationand there would be no discrimination where the classificationmaking the differentia fulfils two conditions, namely, (i) that theclassification is founded on an intelligible differentia whichdistinguishes persons or things that are grouped together fromothers left out of the group; and (ii) that that differentia has arational relation to the object sought to be achieved by the impugnedlegislative or executive action. It was for the first time in E.P.Royappa v. State of Tamil Nadu, (1974) 2 SCR 348: (1974) 4SCC 3, that this Court laid bare new dimension of Article 14 andpointed out that that article has highly activist magnitude and itembodies guarantee against arbitrariness. This Court speakingthrough one of us (Bhagwati, J.) said: SCC p. 38: SCC (L&S) p.200, para 85]

“The basic principle which, therefore, informs both Articles 14and 16 is equality and inhibition against discrimination. Now,what is the content and reach of this great equalising principle?

It is founding faith, to use the words of Bose, J., ‘a way oflife’, and it must not be subjected to narrow pedantic orlexicographic approach. We cannot countenance any attemptto truncate its all-embracing scope and meaning, for to do sowould be to violate its activist magnitude. Equality is dynamicconcept with many aspects and dimensions and it cannot be“cribbed, cabined and confined” within traditional anddoctrinaire limits. From positivistic point of view, equality isantithetic to arbitrariness. In fact, equality and arbitrarinessare sworn enemies; one belongs to the rule of law in republicwhile the other, to the whim and caprice of an absolute monarch.Where an act is arbitrary it is implicit in it that it is unequal bothaccording to political logic and constitutional law and is thereforeviolative of Article 14, and if it affects any matter relating topublic employment, it is also violative of Article 16. Articles 14and 16 strike at arbitrariness in State action and ensure fairnessand equality of treatment.”

This vital and dynamic aspect which was till then lying latent andsubmerged in the few simple but pregnant words of Article 14was explored and brought to light in Royappa case, (1974) 2 SCR348: (1974) 4 SCC 3, and it was reaffirmed and elaborated by thisCourt in Maneka Gandhi v. Union of India, (1978) 1 SCC 248,where this Court again speaking through one of us (Bhagwati, J.)observed: (SCC pp. 283-84, para 7)

“Now the question immediately arises as to what is therequirement of Article 14: What is the content and reach ofthe great equalising principle enunciated in this Article? Therecan be no doubt that it is founding faith of the Constitution. Itis indeed the pillar on which rests securely the foundation ofour democratic republic. And, therefore, it must not be subjectedto narrow, pedantic or lexicographic approach. No attemptshould be made to truncate its all-embracing scope and meaning,for to do so would be to violate its activist magnitude. Equalityis dynamic concept with many aspects and dimensions and itcannot be imprisoned within traditional and doctrinaire limits....Article 14 strikes at arbitrariness in State action and ensuresfairness and equality of treatment. The principle ofreasonableness, which legally as well as philosophically, is an

essential element of equality or non-arbitrariness pervadesArticle 14 like brooding omnipresence.”

This was again reiterated by this Court in International AirportAuthority case, (1979) 3 SCC 489, at p. 1042 (SCC p. 511) of theReport. It must therefore now be taken to be well settled thatwhat Article 14 strikes at is arbitrariness because an action that isarbitrary must necessarily involve negation of equality. The doctrineof classification which is evolved by the courts is not paraphraseof Article 14 nor is it the objective and end of that article. It ismerely judicial formula for determining whether the legislativeor executive action in question is arbitrary and thereforeconstituting denial of equality. If the classification is not reasonableand does not satisfy the two conditions referred to above, theimpugned legislative or executive action would plainly be arbitraryand the guarantee of equality under Article 14 would be breached.Wherever therefore there is arbitrariness in State action whetherit be of the legislature or of the executive or of an “authority”under Article 12, Article 14 immediately springs into action andstrikes down such State action. In fact, the concept ofreasonableness and non-arbitrariness pervades the entireconstitutional scheme and is golden thread which runs throughthe whole of the fabric of the Constitution.”

66.In E.P. Royappa v. State of Tamil Nadu & Anr., (1974) 4SCC 3, concerning the concept of equality and arbitrariness in action, inthe context of Articles 14 and 16, the Court held:

“85. The last two grounds of challenge may be taken up togetherfor consideration. Though we have formulated the third ground ofchallenge as distinct and separate ground, it is really in substanceand effect merely an aspect of the second ground based onviolation of Articles 14 and 16. Article 16 embodies the fundamentalguarantee that there shall be equality of opportunity for all citizensin matters relating to employment or appointment to any officeunder the State. Though enacted as distinct and independentfundamental right because of its great importance as principleensuring equality of opportunity in public employment which is sovital to the building up of the new classless egalitarian societyenvisaged in the Constitution, Article 16 is only an instance of theapplication of the concept of equality enshrined in Article 14. In

Aother words, Article 14 is the genus while Article 16 is species.Article 16 gives effect to the doctrine of equality in all mattersrelating to public employment. The basic principle which, therefore,informs both Articles 14 and 16 is equality and inhibition againstdiscrimination. Now, what is the content and reach of this greatequalising principle? It is founding faith, to use the words ofBBose. J., “a way of life”, and it must not be subjected to narrowpedantic or lexicographic approach. We cannot countenance anyattempt to truncate its all-embracing scope and meaning, for to doso would be to violate its activist magnitude. Equality is dynamicconcept with many aspects and dimensions and it cannot beC“cribbed, cabined and confined” within traditional and doctrinairelimits. From positivistic point of view, equality is antithetic toarbitrariness. In fact equality and arbitrariness are sworn enemies;one belongs to the rule of law in republic while the other, to thewhim and caprice of an absolute monarch. Where an act isarbitrary, it is implicit in it that it is unequal both according to politicalDlogic and constitutional law and is therefore violative of Article14, and if it effects any matter relating to public employment, it isalso violative of Article 16. Articles 14 and 16 strike at arbitrarinessin State action and ensure fairness and equality of treatment. Theyrequire that State action must be based on valid relevant principlesEapplicable alike to all similarly situate and it must not be guided byany extraneous or irrelevant considerations because that wouldbe denial of equality. Where the operative reason for State action,as distinguished from motive inducing from the antechamber ofthe mind, is not legitimate and relevant but is extraneous and outsidethe area of permissible considerations, it would amount to malaFfide exercise of power and that is hit by Articles 14 and 16. Malafide exercise of power and arbitrariness are different lethalradiations emanating from the same vice: in fact the lattercomprehends the former. Both are inhibited by Articles 14 and16.”

67.In Maneka Gandhi v. Union of India & Anr., (1978) 1 SCC248, this Court held that fundamental rights are not distinct and mutuallyexclusive rights. Each freedom has its dimensions. The law is not freedfrom the necessity to meet the challenge of another guaranteed freedom.Thus, the law effecting personal liberty under Article 21 will also have toHsatisfy the test under Articles 14 and 19. In majority opinion, Beg, J.observed:

“202. Articles dealing with different fundamental rights containedin Part III of the Constitution do not represent entirely separatestreams of rights which do not mingle at many points. They are allparts of an integrated scheme in the Constitution. Their watersmust mix to constitute that grand flow of unimpeded and impartialJustice (social, economic and political), Freedom (not only ofthought, expression, belief, faith and worship, but also of association,movement, vocation or occupation as well as of acquisition andpossession of reasonable property), of Equality (of status and ofopportunity, which imply absence of unreasonable or unfairdiscrimination between individuals, groups, and classes) and ofFraternity (assuring dignity of the individual and the unity of thenation), which our Constitution visualises. Isolation of variousaspects of human freedom, for purposes of their protection, isneither realistic nor beneficial but would defeat the very objectsof such protection.”

Justices Bhagwati, Untwalia and Fazal Ali observed:

“The nature and requirement of the procedure under Article 21

7. Now, the question immediately arises as to what is therequirement of Article 14 : what is the content and reach of thegreat equalising principle enunciated in this article? There can beno doubt that it is founding faith of the Constitution. It is indeedthe pillar on which rests securely the foundation of our democraticrepublic. And, therefore, it must not be subjected to narrow,pedantic or lexicographic approach. No attempt should be madeto truncate its all-embracing scope and meaning, for to do so wouldbe to violate its activist magnitude. Equality is dynamic conceptwith many aspects and dimensions and it cannot be imprisonedwithin traditional and doctrinaire limits. We must reiterate herewhat was pointed out by the majority in E.P. Royappa v. State ofTamil Nadu, (1974) 2 SCR 348, namely, that “from positivisticpoint of view, equality is antithetic to arbitrariness. In fact equalityand arbitrariness are sworn enemies; one belongs to the rule oflaw in republic, while the other, to the whim and caprice of anabsolute monarch. Where an act is arbitrary, it is implicit in it thatit is unequal both according to political logic and constitutional lawand is therefore violative of Article 14”. Article 14 strikes atarbitrariness in State action and ensures fairness and equality of

EFG

Atreatment...The principle of reasonableness, which legally as wellas philosophically, is an essential element of equality or non-arbitrariness pervades Article 14 like brooding omnipresenceand the procedure contemplated by Article 21 must answer thetest of reasonableness in order to be in conformity with Article14. It must be “right and just and fair” and not arbitrary, fancifulBor oppressive; otherwise, it would be no procedure at all and therequirement of Article 21 would not be satisfied.”

Krishna Iyer, J. observed:

“96. thorny problem debated recurrently at the bar, turning onCArticle 19, demands some juristic response although avoidance ofoverlap persuades me to drop all other questions canvassed beforeus. The Gopalan verdict, with the cocooning of Article 22 into aself-contained code, has suffered suppression at the hands of R.C.Cooper, (1970) 3 SCR 530. By way of aside, the fluctuatingfortunes of fundamental rights, when the proletarist and theDproprietarist have asserted them in Court, partially provokesociological research and hesitantly project the Cardozo thesis ofsub-conscious forces in judicial noesis when the cycloramic reviewstarts from Gopalan, moves on to In re Kerala Education Bill,1959 SCR 995 and then on to All-India Bank Employees’EAssociation, (1962) 3 SCR 269, next to Sakal Papers, (1962) 3SCR 842, crowning in Cooper and followed by Bennett Coleman,(1973) 2 SCR 757 and Shambhu Nath Sarkar, (1973) 1 SCC 856.Be that as it may, the law is now settled, as I apprehend it, that noarticle in Part III is an island but part of continent and theconspectus of the whole part gives the direction and correctionFneeded for interpretation of these basic provisions. Man is notdissectible into separate limbs and, likewise, cardinal rights in anorganic constitution, which make man human have synthesis.The proposition is indubitable that Article 21 does not, in givensituation, exclude Article 19 if both rights are breached.”

68.In Neelima Misra v. Harinder Kaur Paintal & Ors., (1990)2 SCC 746, this Court held that an administrative action, whetherlegislative, administrative or quasi-judicial must not be illegal, irrationalor arbitrary. The non-obstante clause as to what it excludes is to beconsidered only in light of extent of power conferred on the Governor toHissue notification, to order that Act of the legislature shall not apply and

may make exceptions and modifications. However, at the same timepower is to be exercised within bounds of legislative power conferredon the legislature. The special control is conferred upon the Governor todirect that any Act shall not apply, which could not otherwise apply or beapplicable in the area without such exceptions or modifications as orderedby the Governor.

Effect of the non-obstante clause:

69.Para 5(1) of the Fifth Schedule of the Constitution starts witha non-obstante clause. What is the effect of the non-obstante clausevis-à-vis the applicability to other provisions of the Constitution? Whetherthe provisions of Para 5(1) prevail over all other provisions of theConstitution? Whether the fundamental rights in Part III of theConstitution 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 astaking away the provision outside the limitations on the amending powerand has to be harmoniously construed consistent with the foundationalprinciples and the basic features of the Constitution.

71.In R.C. Poudyal v. Union of India & Ors., 1994 Supp. (1)SCC 324, this Court considered the question whether the non-obstanteclause (f) to Article 371F inserted by the Constitution (36[th] Amendment)Act, 1975 containing special provision for the State of Sikkim. TheGovernor of Sikkim has exclusive responsibility for peace and equitablearrangement, for social and economic advancement and various otherprovisions have been made that the non-obstante clause is contained inArticle 371-F, cannot be construed as taking clause (f) of Article 371Foutside the limitation on the amendment power itself. This Court opinedthat:

“102. It is, however, urged that Article 371-F starts with non-obstante clause, and therefore the other provisions of theConstitution do not limit the power to impose conditions. But Article371-F cannot transgress the basic features of the Constitution.The non-obstante clause cannot be construed as taking clause (f)of Article 371-F outside the limitations on the amendment poweritself. The provisions of clause (f) of Article 371-F and Article 2have to be construed harmoniously consistent with the foundationalprinciples and basic features of the Constitution. Whether clause

(f) has the effect of destroying basic feature of the Constitutiondepends, in turn, on the question whether reservation of seats inthe legislature based on ethnic group is itself destructive ofdemocratic principle. Whatever the merits of the contentions be,it cannot be said that the issues raised are non-justiciable.

B103. In Mangal Singh v. Union of India, (1967) 2 SCR 109, 112this Court said:

“Power with which the Parliament is invested by Articles 2 and 3,is power to admit, establish, or from new States which conform tothe democratic pattern envisaged by the Constitution; and theCpower which the Parliament may exercise by law is supplemental,incidental or consequential to the admission, establishment orformation of State as contemplated by the Constitution, and isnot power to override the constitutional scheme.”

104. Even if clause (f) of Article 371-F is valid, if the terms andconditions stipulated in law made under Article 2 read with clause(f) of Article 371-F go beyond the constitutionally permissiblelatitudes, that law can be questioned as to its validity. Thecontention that the vires of the provisions and effects of such alaw are non-justiciable cannot be accepted.”

72.In State of Sikkim v. Surendra Prasad Sharma & Ors.,(1994) 5 SCC 282, this Court held that the laws, which were in forcebefore the commencement of the Constitution of India, must be consistentwith Part III of the Constitution to continue to be in force. This Courtopined:

“11. From the above constitutional scheme what emerges is thatthe laws which were in force in the territory of India immediatelybefore the commencement of the Constitution shall continue inforce therein until altered, repealed or amended by competentlegislature or authority except to the extent inconsistent with PartIII of the Constitution. However, notwithstanding anything in theConstitution, Parliament was empowered to make laws inter aliawith respect to any matter referred to in Article 16(3). Thus,Parliament could prescribe by law the requirement as to residencewithin State or Union Territory and if such law is made nothingin Article 16 will stand in the way of such prescription. SinceArticle 16(3) is in Part III of the Constitution, the law, if made,

would clearly be intra vires the Constitution. By virtue of Article35(b) any law in force immediately before the commencement ofthe Constitution in relation to any matter in Article 16(3) shallcontinue in force, notwithstanding anything in the Constitution.The expression ‘law in force’ has the meaning assigned to it inArticle 372, Explanation I. This is the conjoint effect of Articles13, 16(3), 35(b) and 372 of the Constitution. Since Sikkim wasnever part of the territory of India immediately before thecommencement of the Constitution, the High Court has ruled outthe applicability of the said provisions in this case. Article 2 providesthat Parliament may by law admit into the Union, or establish,new States on such terms and conditions as it thinks fit. The lawso made must conform to the requirements of Article 13. That isthe view expressed in Poudyal case, 1944 Supp (1) SCC 324. Butthe historical events preceding its inclusion in the territory of Indiamust be borne in mind. Sikkim during the British period was ruledby monarch called the Chogyal. After India became free therewas popular demand from the people of Sikkim for its mergerwith India. Pursuant to the sentiments expressed by the People ofSikkim, treaty was entered into between India and the Chogyalshort of merger which was followed up by consequential changes.However, the public demand became violent forcing the Chogyalto request the Union Government to assume the responsibility forgood Government. Ultimately, on 8-5-1973, formal agreementwas signed between the Chogyal and the political leaders of Sikkimon the one side and the Government of India on the other inpursuance whereto the people of Sikkim were to enjoy certaindemocratic rights. This development would show that Sikkim whichwas British protectorate under the British paramountcy until1947 came within the protectorate of India under the treaty of 3-12-1950 and later became an associate State by the insertion ofArticle 2-A in the Constitution by the 35th Amendment on theterms and conditions set out in the Tenth Schedule and soonthereafter by the 36th Amendment Article 2-A was deleted andfull statehood under the Union of India was conferred on the termsand conditions incorporated in the newly added Article 371-F.These constitutional changes had to be introduced in 1975 inreciprocation of the understanding on which Sikkim agreed to itsmerger with India and to fulfil the aspirations of the Sikkimese

Apeople. The terms and conditions for merger of Sikkim found inArticle 371-F have, therefore, to be viewed in this background.”

73.However, under the special agreement special provisionscontained in Article 371-F(k), all laws in force in the State of Sikkimwere protected until amended or repealed to ensure smooth transitionBfrom Chogyal’s rule to democratic rules under the Constitution. Article371-F(l) enshrines that many of such existing laws may be inconsistentwith the Constitution, as such immunity was granted in the transitionalperiod, this Court in State of Sikkim v. Surendra Prasad Sharma(supra)considered non-obstante clause in Article 371-F and observedthat the laws in force would have had to meet the test of Article 13 ofCthe Constitution. It was held:

“22. Article 371-F, is as stated earlier, special constitutionalprovision concerning the State of Sikkim. The reason why it beginswith nonobstante clause is that the matters referred to in thevarious clauses immediately following required protective coverso that such matters are not struck down as unconstitutionalbecause they do not satisfy the constitutional requirement. Unlesssuch immunity was granted, ‘the laws in force’ would have had tomeet the test of Article 13 of the Constitution. Same being theobjective, existing laws or laws in force came to be protected byclause (k) added to Article 371-F. The said laws in force in theState of Sikkim were, therefore, protected, until amended orrepealed, to ensure smooth transition from the Chogyal’s rule tothe democratic rule under the Constitution. Inherent in clause (l)is the assumption that many of such existing laws may beinconsistent with the Constitution and, therefore, the Presidentcame to be conferred with special power to make adaptationsand modifications with view to making the said rule consistentwith the Constitution. Of course, this power had to be exercisedwithin two years from the appointed day. If any adaptation ormodification is made in the law in force prevailing prior to theappointed day, the law would apply subject to such adaptation andmodification. It is thus obvious that the adaptation and modificationmade by the President in exercise of this special power does nothave the effect of the law ceasing to be law in force within themeaning of clause (k) of Article 371-F. Therefore, on the plainlanguage of the said provision it is difficult to hold that the effect

of adaptation or modification is to take the law out of the purviewof ‘laws in force’.”

74.The non-obstante clause contained in Para 5(1) of the FifthSchedule of the Constitution means the Governor can exercise power inspite of the provisions contained in Article 245 of the Constitution,conferring the power upon Parliament to make laws and the legislatureof the State. The Parliament has the power to enact the law. It cannotbe questioned on the ground that it would have extra-territorial operation.

75.The non-obstante 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 thecontext and purpose for which it has been carved out.

76.In Peerless General Finance and Investment Co. Ld. AndAnr. v. Reserve Bank of India, (1992) 2 SCC 343, the Court held thatthe court has to make every endeavour to ensure that the efficacy offundamental rights is maintained and the legislature is not invested withunlimited power. The Court is to guard against the gradual encroachmentand strike down restriction as soon as it reaches that magnitude oftotal infringement of the right. The Court observed:

“48. x x x The State can regulate the exercise of the fundamentalright to save the public from substantive evil. The existence ofthe evil as well as the means adopted to check it are the mattersfor the legislative judgment. But the Court is entitled to considerwhether the degree and mode of the regulation is in excess of therequirement or is imposed in an arbitrary manner. The Court hasto see whether the measure adopted is relevant or appropriate tothe power exercised by the authority or whether it oversteppedthe limits of social legislation. Smaller inroads may lead to largerinroads and ultimately result in total prohibition by indirect method.If it directly transgresses or substantially and inevitably affectsthe fundamental right, it becomes unconstitutional, but not wherethe impact is only remotely possible or incidental. The Court mustlift the veil of the form and appearance to discover the truecharacter and the nature of the legislation, and every endeavourshould be made to have the efficacy of fundamental rightmaintained and the legislature is not invested with unboundedpower. The Court has, therefore, always to guard against the

90SUPREME COURT REPORTS

Agradual encroachments and strike down restriction as soon as itreaches that magnitude of total annihilation of the right.”

77. In case the argument raised on behalf of the respondent isaccepted that the Governor has unfettered power, notwithstanding theprovisions contained in Part III of the Constitution, Article 13 of theBConstitution becomes redundant. The power of judicial review of courtand legislature would loom into insignificance. There is no power to thelegislature or to the Governor to act contrary to the constitutionalprovisions, and they cannot enact law in derogation to the provisionscontained in Part III of the Constitution. In Chandavarkar S. R. Rao v.Ashalata S. Guram, (1986) 4 SCC 447, it has been held that the effectCof the non-obstante clause is that in spite of the provisions of the Act orany other Act mentioned in the non-obstante clause or any contract ordocument mentioned, the enactment following it will have its full operationor that the provision vested in the non-obstante clause would not be animpediment for the operation of the enactment. In case Governor decidesDnot to apply the Act of the Parliament or legislature of the State or applythem with exceptions and modifications, he is empowered to do so. Butit would be subject to the restriction on the very legislative power withwhich the Parliament or legislature of State suffers from the above-avowed objective devised by the framers of the Constitution.E78.The power is conferred on the Governor to deal with thescheduled areas. It is not meant to prevail over the Constitution. Thepower of the Governor is pari passu with the legislative power ofParliament and the State. The legislative power can be exercised by theParliament or the State subject to the provisions of Part III of theConstitution. In our considered opinion, the power of the Governor doesFnot supersede the fundamental rights under Part III of the Constitution.It has to be exercised subject to Part III and other provisions of theConstitution. When Para 5 of the Fifth Schedule confers power on theGovernor, it is not meant to be conferral of arbitrary power. TheConstitution can never aim to confer any arbitrary power on theGconstitutional authorities. They are to be exercised in rational mannerkeeping in view the objectives of the Constitution. The powers are not inderogation but the furtherance of the constitutional aims and objectives.

In Re: Question No.1(d): Whether the exercise of powerunder the Fifth Schedule of the Constitution overrides any parallelHexercise of power by the President underArticle 371D?

79.It was argued on behalf of the appellants that Article 371Dwas promulgated in view of geographical disparity in public employmentwithin the State of Andhra Pradesh. The candidates from certain districts/areas of the State capturing disproportionately large number of publicposts. Article 371D requires the State Government to reorganise classor classes of posts in the State into different local cadres for differentparts of the State. The Presidential Order of 1975 was issued providingdistrict/zone as unit for the local cadre. Whereas, G.O. provided thatall the posts of teachers in the schools situated in Scheduled Areas in theState of Andhra Pradesh shall be filled in with the local Scheduled Tribescandidates only. district or zone is the unit for the local cadre. Whereason the other hand, the impugned G.O.Ms. No.3 of 2000 provided that allthe posts of teachers in the Scheduled Area, forming part of district, tobe filled up by local Scheduled Tribe candidates only. The impugnedG.O. reserved all the posts in the Scheduled Area; thus, aspiringcandidates in district/zone in the Scheduled Areas cannot apply for thepost of teachers in the district or zone as all the posts have been reservedfor local Scheduled Tribe candidates and “they cannot apply outside thedistrict or zone” because of the restrictions under Article 371D of theConstitution.

80.Learned counsel for the appellant further argued that thecandidates other than Scheduled Tribe candidates in district residing inScheduled Areas cannot apply at all, and they have been deprived of theopportunity of getting public employment. The impugned G.O. takes awaythe entire opportunity of non-Scheduled Tribe candidates even fromapplying for the post of teachers. Thus, the impugned G.O. transgressesArticle 371D of the Constitution and is unconstitutional. The Governorcould not have issued the notification in such manner in exercise ofpowers under Para 5 of Fifth Schedule, which is repugnant to thePresidential Order issued under Article 371D. The Governor cannotexercise the powers under Para 5(1) of Fifth Schedule and cannot modifyor override the provisions of Article 371D of the Constitution.

81.It was argued on behalf of respondents that there is norepugnancy in the Presidential Order and the impugned notification issuedby the Governor. Article 371D also starts with non-obstante clauseand conflict between the non-obstante clause as far as possible mustbe resolved by way of harmonious construction of two conflicting non-obstante clauses as laid down in Jay Engineering Works Limited v.Industry Facilitation Council and Anr., (2006) 8 SCC 677:

“28. Both the Acts contain non obstante clauses. Ordinary ruleof construction is that where there are two non obstante clauses,the latter shall prevail. But it is equally well settled that ultimateconclusion thereupon would depend upon the limited context ofthe statute. (See Allahabad Bank, (2000) 4 SCC 406, para 34.)

B29. In Maruti Udyog Ltd. v. Ram Lal, (2005) 2 SCC 638, it wasobserved: (SCC p. 653, para 39)

“39. The interpretation of Section 25-J of the 1947 Act aspropounded by Mr Das also cannot also be accepted inasmuchas in terms thereof only the provisions of the said chapter shallChave effect notwithstanding anything inconsistent therewithcontained in any other law including the Standing Orders madeunder the Industrial Employment (Standing Orders) Act, but itwill have no application in case where something different isenvisaged in terms of the statutory scheme. beneficial statute,as is well known, may receive liberal construction but the sameDcannot be extended beyond the statutory scheme.”

30. In Sarwan Singh v. Kasturi Lal, (1977) 1 SCC 750, thisCourt opined: (SCC p. 760, para 20)

“When two or more laws operate in the same field and eachcontains non obstante clause stating that its provisions will overridethose of any other law, stimulating and incisive problems ofinterpretation arise. Since statutory interpretation has noconventional protocol, cases of such conflict have to be decidedin reference to the object and purpose of the laws underconsideration.”

31. The endeavour of the court would, however, always be toadopt rule of harmonious construction.”

It was laid down that endeavour of the court would always be toadopt rule of harmonious construction, and the non-obstante clausemust be given effect as to the Parliament intent and not beyond that. ItGwas also urged that if the latter provision is found to be generic as againstthe earlier provision, which is special provision, then the earlier provisionshall prevail. Reliance has also been placed on Maharashtra TubesLtd. v. State Industrial & Investment Corporation of MaharashtraLtd. and Anr., (1993) 2 SCC 144. The policy underlying the provisionsHhas to be considered, as observed in Jay Engineering Works (supra).

The notification issued, according to the Presidential Order, createsdistrict/zonal cadre for teachers. The Governor Order reserved the postsof teachers in the Scheduled Area for Scheduled Tribes. There is nostrict conflict between the aforesaid notification, and harmoniousconstruction is possible.

82.It was further urged on behalf of respondents that the State ofAndhra Pradesh was reorganised in the year 1956, and part of the areasfalling in the State of Hyderabad, Telugu speaking areas known asTelangana merged with Andhra Pradesh. In the Telangana region, MulkiRules prevail, which provide for residence as requirement for publicemployment. After the reorganisation, the Central Government enactedthe A.P. Public Employment (Requirement as to Residence) Act, 1957,to continue the same. On challenge being made as to the provisionsbeing violative of Article 16(2), this Court in Narasimha Rao v. State ofA.P., (1969) 1 SCC 839, opined that the residence requirement asunconstitutional, resulting in agitation demanding division of State. TheParliament amended the Constitution by inserting Article 371D,empowering the President to issue an order providing equal opportunitiesto people belonging to different parts of the State in education and publicemployment. Under para 3 of the Presidential Order, the civil posts inthe State were to be organised on local cadres, such as Lower DivisionClerks and equivalent Non-Gazetted category and existed Gazetted andNon-Gazetted category in each department. Paras 4 and 5 of thePresidential Order provided that employees to be allotted to local cadres/areas, which shall be unit for all purpose. Under para 6 of the PresidentialOrder, local areas have to be the basis for various posts making district/zone, multi zone and State-wide as local areas for all civil posts. Para 8provided for reservation by way of direct recruitment for local candidates.Article 371D(10) provided for non-obstante clause to make provisionsimmune from challenge from Articles 14 and 16 of the Constitution. Theoperation of Article 371D is confined to providing for reservation in directrecruitment for local candidates and also for various percentages ofreservation for locals. Under para 6(1) each district shall be regarded aslocal area. The action is not violative of Article 371D. It was furtherargued on behalf of respondents that the President has issued notificationunder Article 371D towards the promotion of equality of opportunity.The notification did not deal with Scheduled Areas or employmentopportunities in Scheduled Areas. No notification issued by the Presidentunder Article 371D collides or is in conflict with the impugned notification.

AThe preferences given to the local areas within the meaning of Presidentialnotification or exclusion of non-local areas cadre will not offend Article14 of the Constitution, for which reliance has been placed on Sandeepand Ors. v. Union of India and Ors., (2016) 2 SCC 328, Dr. FazalGhafoor v. Principal, Osmania Medical College, Hyderabad andOrs., (1988) 4 SCC 532, Dr. Fazal Ghafoor v. Union of India andBOrs., (1988) Supp. SCC 794, N.T.R. University of Health Science,Vijayawada v. G. Babu Rajendra Prasad and Anr., (2003) 5 SCC350. Similar logic, which is applicable to Articles 14 and 371D, is also tobe relevant in the context of what the Governor does under the FifthSchedule. Consequently, what the Governor has done to greater equalityCfor Scheduled Areas will not be faulted.83.The non-obstante clause in Article 371D will not annul thenon-obstante clause in Para 5 of the Fifth Schedule. Two constitutionalprovisions operate in distinct domain. Article 371D was not enacted tobe super imposition on Fifth Schedule. The object and purpose ofDlegislations or provisions with respect to non-obstante clause aredistinct. Thus, the court will not see any conflict. Reference has beenmade to R.S. Raghunath v. State of Karnataka and Ors.,(1991) Supp.1 SCR 387, Sarwan Singh and Ors. v. Kasturi Lal, (1977) 2 SCR 421,Sanwarmal Kejriwal v. Vishwa Co-operative Housing Society Ltd.and Ors., (1990) 1 SCR 862, The South India Corporation (P) Ltd. v.EThe Secretary, Board of Revenue Trivandrum and Ors., (1964) 4SCR 280, and Dr. Fazal Ghafoor v. Principal, Osmania MedicalCollege, Hyderabad and Ors., (1988) 4 SCC 532.

84.Article 371-D has been inserted in the Constitution of India.Sub-clauses 1, 2 and 10 of Article 371-D are extracted hereunder:F

“371D. Special provisions with respect to the State of Andhra

Pradesh or the State of Telangana.—(1) The president mayby order made with respect to the state of Andhra Pradesh or theState of Telangana provide, having regard to the requirement ofeach State, for equitable opportunities and facilities for the peopleGbelonging to different parts of such State, in the matter of publicemployment and in the matter of education, and different provisionsmay be made for various parts of the States.

(2) An order made under clause (1) may, in particular,—

(a) require the State Government to organise any class orclasses of posts in civil service of, or any class or classes ofcivil posts under, the State into different local cadres for differentparts of the State and allot in accordance with such principlesand procedure as may be specified in the order the personsholding such posts to the local cadres so organised;

(b) specify any part or parts of the State which shall be regardedas the local area—

(i) for direct recruitment to posts in any local cadre (whetherorganised in pursuance of an order under this article orconstituted otherwise) under the State Government;

(ii) for direct recruitment to posts in any cadre under any localauthority within the State; and

(iii) for the purposes of admission to any University within theState or to any other educational institution which is subjectto the control of the State Government;

(c) specify the extent to which, the manner in which and theconditions subject to which, preference or reservation shall begiven or made—

(i) in the matter of direct recruitment to posts in any suchcadre referred to in sub-clause (b) as may be specified inthis behalf in the order;

(ii) in the matter of admission to any such University or othereducational institution referred to in sub-clause (b) as maybe specified in this behalf in the order,

to or in favour of candidates who have resided or studied for anyperiod specified in the order in the local area in respect of suchcadre, University or other educational institution, as the case maybe.

(3) x x x

10) The provisions of this article and of any order made by thePresident thereunder shall have effect notwithstanding anythingin any other provision of this Constitution or in any other law forthe time being in force.”

96SUPREME COURT REPORTS

AThe provisions contained in Article 371D were inserted by theConstitution (Thirty-second Amendment) Act, 1973, w.e.f. 1.7.1974 andhas further been amended by the Andhra Pradesh Reorganisation Act,2014, applicable to the State of Andhra Pradesh or the State of Telangana.

85. The President in exercise of powers under Article 371-D(1)Band (2) promulgated order, namely, Andhra Pradesh Public Employment(Organisation of Local Cadres and Regulation of Direct Recruitment)Order, 1975. Para 3 provided for organisation of local cadres. Recruitmentto various categories has to be made to local cadres taking district as aunit or 3 or 4 districts comprising as zone. The local area has beendefined in Para 6(1) thus:C

“Local areas: (1) Each district shall be regarded as local area–

(i) For direct recruitment to posts in any local cadre under theState Government comprising all or any of the posts in anydepartment in that district belonging to the category of JuniorDAssistants or to any other category equivalent to or lower thanthat of Junior Assistant.

(ii) For direct recruitment to posts in any cadre under any localauthority within that district, carrying sale of pay the minimumof which does not exceed the minimum of the scale of pay of aEJunior Assistant or fixed pay not exceeding that amount.”

For recruitment to the posts of teachers, district is unit.

Para 7 defines local candidates. Para 8 provides that 80 per centof the posts to be filled by direct recruitment. The matter of recruitmentto various local cadres is required to be in terms of the provisions of theFPresidential Order issued under Article 371D. The recruitment of teachersis to be made for which district is unit.

86.In Dr. C. Surekha v. Union of India, AIR 1989 SC 44, thisCourt held that Article 371D does not militate against the basic structureof the Constitution. Similar is the view taken in Dr. Fazal Ghafoor v.GUnion of India, AIR 1989 SC 48.

87.This Court in V. Jagannadha Rao and Ors. v. State of A.P.and Ors., (2001) 10 SCC 401 held that Article 371D(1) of the Constitutionunequivocally indicates that the said article and any order made by thePresident thereunder shall have effect notwithstanding anything in anyHother provision of the Constitution or any other law for the time being inforce. The Court observed:

“21. In Sadanandam case, 1989 Supp. (1) SCC 574, whileconsidering the legality of amended provisions of the Rules framedby the State Government and in sustaining the same, this Courtwas of the opinion that as the aforesaid Rules had been framedunder Section (3) of the Andhra Pradesh Ordinance 5 of 1983read with para 5(2)(a) of the Presidential Order, the conclusionof the Tribunal in striking down the rule is erroneous. The Courtwas of the opinion that mode of recruitment and category fromwhich the recruitment to service should be made are policymatters exclusively within the purview and domain of the executiveand it would not be appropriate for judicial bodies to sit in judgmentover the wisdom of the executive in choosing the mode ofrecruitment or the categories from which the recruitment shouldbe made. In our considered opinion, both the aforesaid reasons donot constitute true interpretation of the provisions of thePresidential Order. At the outset, it may be noticed that Article371-D(10) of the Constitution unequivocally indicates thatthe said article and any order made by the Presidentthereunder shall have effect notwithstanding anything in anyother provision of the Constitution or in any other law for thetime being in force. Necessarily, therefore, if it is construedand held that the Presidential Order prohibits considerationof the employees from the feeder category from other unitsthen such rule made by the Governor under the proviso toArticle 309 of the Constitution will have to be struck down.Then again in exercise of powers under para 5(2) of the PresidentialOrder if the State Government makes any provision, which isoutside the purview of the authority of the Government underpara 5(2) of the Order itself, then the said provision also has to bestruck down. Having construed the Rules framed by the Governorunder proviso to Article 309 of the Constitution from the aforesaidstandpoint, the conclusion is irresistible that the said Rule to theextent indicated by the Tribunal is constitutionally invalid and itsconclusion is unassailable. In the case in hand, the impugnedprovisions do not appear to have been framed in exercise ofpowers under para 5(2) of the Presidential Order and as suchthe same being Rule made under proviso to Article 309 ofthe Constitution, the Presidential Order would prevail, asprovided under Article 371-D(10) of the Constitution. Even if

Ait is construed to be an order made under para 5(2) of thePresidential Order, then also the same would be invalid beingbeyond the permissible limits provided under the said paragraph.In this view of the matter, the Tribunal rightly held the provision tothe extent it provides for consideration of employees of theFactories and Boilers Units to be invalid, for the purpose ofBpromotion to the higher post in the Labour Unit and as such wesee no justification for our interference with the said conclusionof the Tribunal and the earlier judgment of this Court inSadanandam case, 1989 Supp. (1) SCC 574, must be held tohave not been correctly decided. As consequence, so would beCthe case with Satyanarayana Rao case, (2000) 4 SCC 262.”

(emphasis supplied by us)

88.In S. Prakasha Rao and Anr. v. Commissioner ofCommercial Taxes and Ors., (1990) 2 SCC 259, this Court opined thatonce the President makes an order under Article 371D(1) and (2), theDState Government loses its inherent power to deal with matters relatingto services, it may exercise its powers on matters dealt with thePresidential Order only in the manner specified in the order. This Courtobserved:

“19. It is seen that the order was made pursuant to the powerEgiven to the President under Article 371-D, which is specialprovision made under the Constitution (Thirty-second Amendment)Act, 1973 peculiar to the State of Andhra Pradesh due to historicalbackground. Therefore, the State Government have no inherentpower in creating zone or organising local cadre within the zonesFexcept in accordance with the provisions made in the AndhraPradesh Public Employment (Organisation of Local Cadres andRegulation for Direct Recruitment) Order. It is true that the clause‘or constituted otherwise’ defined in paragraph 2(e) is of wideimport, but is only relatable to the power given by the President tothe State Government to organise local cadre. Paragraph 3(1) isGthe source of that power, but the exercise thereof is hedged witha limitation of twelve months from the date of commencement ofthe Order. Therefore, the power to organise class or classes ofpost of civil services of, and class or classes of civil posts, underthe State into different local cadres should be exercised by theHState Government in accordance with paragraph 3(1) before the

expiry of the twelve months from October 20, 1975. If the exerciseof the power is not circumscribed within limitation, certainly underGeneral Clauses Act the power could be exercised from time totime in organising local cadres to meet the administrativeexigencies. The prescription of limitation is fetter put on theexercise of power by the State Government. Obviously, realisingthis reality and the need to organise local cadres, subsequentthereto the amendment was made and was published in GOMsNo. 34 G.A. dated January 24, 1981 introducing proviso toparagraph 3(1). Thereunder, notwithstanding the expiry of the saidperiod, the President alone has been given power to organise localcadres in respect of class or classes of posts in civil services andclass or classes of civil posts, under the State. That too subject tothe conditions precedent laid therein. Thus, it is the President andthe President alone who has been given power under proviso byan order to require the State Government to organise the localcadres in relation to any class or classes of posts in the civil servicesof and class or classes of civil posts under the State into differentlocal cadres. It could be considered in yet another perspective.Paragraph 2(e) indicates that President himself may create localcadre instead of requiring the State Government to organise localcadre. For instance, paragraph 3(6) empowered the Presidentto create local cadre for the city of Hyderabad. Similarly,under proviso to paragraph 3(1) the President may requirethe State Government to create local cadre within zone.So the phrase ‘or constituted otherwise’ cannot be understoodde hors the scheme of the Presidential Order. No doubt incommon parlance, the word ‘otherwise’ is of ‘wide’ amplitude.This Court in K.K. Kochuni v. States of Madras and Kerala,AIR 1960 SC 1080, Subba Rao, J., as he then was, speaking permajority in paragraph 50 while construing the word ‘otherwise’held that it must be confined to things analogous to right or contractsuch as lost grant, immemorial user etc. The word ‘otherwise’ inthe context only means whatever may be the origin of the receiptof maintenance. The ratio thereunder cannot be extended in thecontextual circumstances obtainable on the facts in this case.Similarly, in Lilavati Bai v. State of Bombay, AIR 1957 SC 521,Sinha J., as he then was, speaking for the Constitution Benchinterpreting Explanation (a) to Section 6 of Bombay Land

ABCD

Requisition Act, 1948, as amended in 1950 and repelling theapplication of ejusdem generis doctrine laid the law thus:

“The legislature has been cautious and thoroughgoing enoughto bar all avenues of escape by using the words ‘or otherwise’.Those words are not words of limitation but of extension so asto cover all possible ways in which vacancy may occur.Generally speaking tenant’s occupation of his premises ceaseswhen his tenancy is terminated by acts of parties or by operationof law or by eviction by the landlord or by assignment or transferof the tenant’s interest. But the legislature, when it used thewords ‘or otherwise’, apparently intended to cover other caseswhich may not come within the meaning of the precedingclauses, for example, case where the tenant’s occupationhas ceased as result of trespass by third party. Thelegislature, in our opinion, intended to cover all possible casesof vacancy occurring due to any reasons whatsoever.”

Thus, contextual interpretation to the words ‘or otherwise’ wasgiven by this Court. Therefore, the phrase ‘constituted otherwise’is to be understood in that context and purpose which Article 371-D and the Presidential Order seek to achieve. If the interpretationgiven by the appellants is given acceptance it amounts togiving blanket power to the State Government to create localcadres at its will tending to defeat the object of Article 371-Dand the Presidential Order. Accordingly, we have no hesitationto reject the interpretation of wider connotation. The ratio in thesedecisions does not render any assistance to the appellants.

20. Similarly, the power given to the State Government in sub-paragraph (7) of paragraph 3 of the Order is only to organise aseparate cadre in respect of any category of posts in anydepartment when more than one cadre in respect of such categoryexists in each department; so the State Government may organiseone cadre when more than one cadre in respect of differentcategories of posts exist in zone under paragraph 3(1) of theOrder. It is clear when we see the language in paragraph 3(7)which says that: “nothing in this order shall be deemed to preventthe State from organising”. Take for instance while creating localcadre co-terminus with the administrative control of the DeputyCommissioner, Commercial Taxes, local cadre for Senior

Assistants may be created. It is also made manifest by instructions7 and 9(e) of the instructions contained in GOMs No. 728 GADdated November 1, 1975. But, as stated earlier, it is only for thepurpose of administrative convenience, not for the purpose ofrecruitment, seniority or promotion etc., as the case may be. Thus,we have no hesitation to hold that the creation of division andmaintaining separate seniority of Junior Assistants and SeniorAssistants for Adilabad and Warangal Divisions are illegal, contraryto order issued in GOMs No. 581 and the Andhra PradeshEmployment (Organisation of Local Cadre and Regulation ofDirect Recruitment) Order, 1975. The single member of theTribunal in R.P. No. 101 of 1982 dated April 1, 1982 did not considerthe effect of the order in proper perspective and is illegal.”

(emphasis supplied by us)

No doubt about it that the provision to have overriding effect shallhave any nexus as to the subject matter of other provisions.

89.The main question to be considered is whether there is anyconflict between the Presidential Order and the G.O. Ms. No. 3 of2000issued under the order of the Governor under Para 5(1) of the FifthSchedule of the Constitution. Considering the geographical disparity inpublic employment, Article 371D was inserted in the Constitution,providing candidates from certain districts/zones to form the local cadrefor different posts for different parts of the States. The PresidentialOrder was issued providing district/zone for local cadre, on the otherhand, the order issued by the Governor has reserved all the posts ofteachers in the Scheduled Areas for Schedule Tribe candidates. Theaspiring candidates of the district/zone in the Scheduled Area cannotapply for the post of teachers in the district as 100 per cent reservationwas made vide G.O.Ms. No. 3 of 2000 by the Governor. It is also notdisputed that aspiring candidates cannot apply outside the district/zonebecause of the restrictions under Article 371D of the Constitution. Asthere is 100 per cent reservation provided for the Scheduled Tribes inthe Scheduled Areas, other candidates of Scheduled Castes, Generaland Other Backward Classes category cannot apply at all in other districts.They are being denied the opportunity of getting the employment asagainst the posts in question. Thus, the order issued by the Governor isclearly in conflict with the Presidential Order issued under Article 371D.The candidates of local areas or other candidates except for Scheduled

ATribes have been deprived of the opportunity of seeking publicemployment because of the order issued by the Governor, and they cannotapply outside the local area in view of the Presidential notification. ThePresidential notification intends that they have to apply within the district,and the Governor’s notification takes away that right. Thus, there is aclear repugnancy between the notification issued by the President andBthat subsequent order issued by the Governor in the exercise of powersunder Para 5, Fifth Schedule of the Constitution. It is not possible toharmonise both the notifications. Apart from that, there is total deprivation.It is not factually correct that Presidential Order did not deal withScheduled Areas. The Presidential Order applied to the entire State andCcarved out special provision that applies with non-obstante clause.90.The Governor is competent to issue an order which is not inconflict with the Presidential Order. The Governor issued the order whenthe Presidential Order was already in force in the entire State. TheGovernor could not have issued the order in derogation to the Presidential

DOrder. In our opinion, 100 per cent reservation could not have beenprovided as that violates the Presidential Order.In Re: Question No.2: whether 100% reservation ispermissible under the Constitution?

91.The Constitution has provided for justice – social, economicEand political; liberty of thought, expression, belief, faith and worship;equality of status and opportunity; and to promote among them allfraternity assuring the dignity of the individual and the unity and integrityof the Nation. The framers of the Constitution have taken great careand deliberation so that it reflects the high purpose and noble objectives.FIt aims at the formation of an egalitarian order, free from exploitation,the fundamental equality of humans and to provide support to the weakersections of the society and wherefrom there is disparity to make themequal by providing protective discrimination. The Constitution in the historicperspective leans in favour of providing equality and those aims soughtto be achieved by the Constitution by giving special protection to theGsocially and economically backward classes by providing protectiveumbrella for their social emancipation and providing them equal justice,ensuring the right of equality by providing helping hand to them by wayof reservation measures. Article 14 guarantees equality before the lawor the equal protection of the laws. Be it matter of distribution of StateHlargesse; the Government is obligated to follow the constitutionalism.

State action cannot be arbitrary and discriminatory and cannot be guidedby extraneous considerations, which is opposed to equality. The conceptof equality is the antithesis of arbitrariness in action. There cannot beany legislation in violation of equality, which violates the basic conceptof equality as enshrined in Part III of the Constitution. An administrativeorder has to be tested on the anvil of non-arbitrariness. Any action of thelegislature, administrative or quasi-judicial, is open to challenge if it is inconflict with the Constitution or the Act and applicable general principlesof law. The protective discrimination of persons residing in backwardareas is permissible, as held in M.P. Oil Extraction & Anr. v. State ofM.P. & Ors., (1997) 7 SCC 592. The industrial units were set up inbackward areas at the instance of the Government. Special treatmentwas given to them for the supply of sal seeds at concessional rate ofroyalty. It was held in the aforesaid decision that the distinction wasreasonable.

92.The concept of equality cannot be pressed to commit anotherwrong. The concept of equality enshrined in Article 14 of the Constitutionis positive concept. It is not concept of negative equality. It cannot beused to perpetuate an illegality. Equity cannot be applied when it arisesout of illegality. The doctrine of equity would not be attracted when thebenefits were conferred on the basis of illegality, as held in Usha Mehtav. Government of Andhra Pradesh, (2012) 12 SCC 419; JohnVallamattom v. Union of India, (2003) 6 SCC 611; General Manager,Uttranchal Jal Sansthan v. Laxmi Devi, (2009) 7 SCC 205, State ofWest Bengal v. Debashish Mukherjee, AIR 2011 SC 3667.

93.Article 14 is to be understood in the light of the DirectivePrinciples, as observed in Indra Sawhney (supra). The classificationmade cannot be unreasonable. It can be based on reasonable basis. Itcannot be arbitrary but must be rational. It should be based on intelligibledifferentia and must have rational nexus to the object sought to beachieved. There are various fields in which Article 14 has extended itsreach and ambit. The provision is very deep and pervasive. It kills theevil of discrimination to bring equality.

94.Article 15 of the Constitution prohibits discrimination based onreligion, race, caste, sex, or place of birth. Article 15(4) provides that theState can make any special provision for the advancement of sociallyand economically backward classes or scheduled castes and scheduledtribes. Similarly, Article 15(5) enables the State to make special provisions

Afor educationally backward classes, Scheduled Castes, and ScheduledTribes for admission to educational institutions, including privateeducational institutions, whether aided or unaided by the State. Article15(6) enables the State Government to make any special provision forthe advancement of economically weaker sections of citizens other thanthe classes mentioned in Article 15(4) and 15(5). The State can alsoBmake provision under Article 15(6)(b) for the advancement ofeconomically weaker sections of the citizens relating to their admissionto educational institutions, including private educational institutions,whether aided or unaided except for the minority educational institutions.The State has the power to notify economically weaker sections fromCtime to time based on family income and other indicators of economicdisadvantage.

95.Article 16 deals with equality of opportunity in matters of publicemployment, which ensures equality of opportunity for all citizens inmatters relating to employment or appointment to any office under theDState. Article 16(2) provides that no citizen shall be discriminated on thegrounds of religion, race, caste, sex, descent, place of birth, residencesor any of them and be ineligible for, or discriminated against in respect ofany employment or office under the State. Article 16(3) enables theParliament to make law regarding class or classes of employment or

appointment to an office providing for any requirement as to residenceEwithin that State or Union Territory before such employment orappointment. Under Article 16(4), State can provide reservation inappointments or posts in favour of any backward class of citizens which,in its opinion, is not adequately represented in services under State.Directive Principles of State Policy enjoin duty upon the State to secureFa social order for the promotion and welfare of the people, to promotejustice – social, economic, and political; and all institutions of the nationallife have to endeavour furtherance of the above-avowed purposes. TheState has to strive to minimise inequalities of income, eliminate the statusof opportunities not only amongst individuals but also groups of peopleengaged in different areas, and engaged in different professions. ArticleG39(b) and (c) aim at the distribution of State largesse and control of thematerial resources of the community as best to sub-serve the commongood, and that the operation of the economic system does not result inthe concentration of wealth and means of production to the collectivedetriment. Article 47 of the Constitution deals with the duty of the StateHto raise the level of nutrition and the standard of living and to improve

public health. Article 51A (a) to (k) contains the fundamental duties, andevery citizen of India must promote harmony and the spirit of commonbrotherhood amongst all the people of India transcending religious,linguistic and regional or sectional diversities; to renounce practicesderogatory to the dignity of women. Article 51A(j) confers duty tostrive towards in all spheres of individual and collective activity so thatthe nation steadily rises to higher levels of endeavours and achievement.Article 51A has been used as an interpretative tool where theconstitutionality of an Act is challenged. The Court considered the dutiesin Mohan Kumar Singhania &Ors. v. Union of India & Ors., 1992Supp. (1) SCC 594 thus:“41. In this regard, it will be worthwhile to refer to Article 51-Ain Part IV-A under the caption ‘Fundamental Duties’ added bythe Constitution (Forty-second Amendment) Act, 1976, inaccordance with the recommendations of the Swaran SinghCommittee. The said article contains mandate of the Constitutionthat it shall be the duty of every citizen of India to do the variousthings specified in clauses (a) to (j) of which clause (j) commandsthat it is the duty of every citizen of India to strive towardsexcellence in all spheres of individual and collective activity sothat the nation constantly rises to higher levels of endeavour andachievement.

42. In our view, the effort taken by the government in givingutmost importance to the training programme of the selectees sothat this higher civil service being the topmost service of the countryis not wasted and does not become fruitless during the trainingperiod is in consonance with the provisions of Article 51-A(j).”

96.The Constitution of India contains special provisions forscheduled castes and scheduled tribes in Part XVI. Article 330 providesfor reservation of seats for scheduled castes and scheduled tribes in theHouse of the People. Article 332 provides for “reservation of seats” forscheduled castes and scheduled tribes in the legislative assemblies ofthe States. Article 334 provides for “reservation of seats” and specialrepresentation to “cease after certain period.” The provision was madeinitially for lesser period. After that, it was extended for 20 years,30 years, 40 years, 50 years, 60 years, and now enhanced to 70 years byamendment made in 2019. Article 335 provides that claims of the membersof the scheduled castes and the scheduled tribes, for maintenance of

Aefficiency of administration, in the making of appointments to servicesand posts in connection with the affairs of the Union or State; andState can relax criteria in qualifying marks in any examination or lowerstandards of evaluation, for reservation in matters of promotion to anyclass or classes of services or posts in connection with the affairs of theUnion or State.B

97.Article 338 provides for constitution of National Commissionfor Scheduled Castes to investigate and monitor all matters relating tothe safeguards provided for the scheduled castes and to evaluate theworking of such safeguards; to inquire into specific complaints concerningthe deprivation of rights and safeguards of the scheduled castes; toCparticipate and advise on the planning process of socio-economicdevelopment of the scheduled castes and to evaluate the progress oftheir development under the Union and any State; to present to thePresident, annually and at such other times as the Commission maydeem fit, reports upon the working of those safeguards are provided inDArticle 338(5)(d). Article 338(6) requires that the President shall causeall such reports to be laid before each House of Parliament and amemorandum explaining action taken or proposed to be taken onrecommendations relating to the Union and the reasons for non-acceptance, if any, of any of such recommendations. copy of thereport has to be forwarded to the Governor to be dealt with in terms ofEArticle 338(7). The Commission has the power of inquiring into anycomplaint as specified in Article 338(8), and Article 338A provides forthe constitution of National Commission for Scheduled Tribes. Similarprovisions are contained for National Commission for Scheduled Tribesin Article 338A. Article 339 envisages control of the Union over theFadministration of scheduled areas and the welfare of the scheduled tribes.Article 340 deals with the appointment of Commission to investigatethe conditions of backward classes.98.Under Article 341 the President concerning any State or Unionterritory, may specify the castes, races or tribes or parts of or groupsGwithin castes, races or tribes which shall for the Constitution, be deemedto be scheduled castes in relation to that State or Union territory, as thecase may be. Article 341(2) confers power on the Parliament to includein or exclude from the list of scheduled castes specified in notificationissued under Article 342(1) any caste, race or tribe or part of or groupwithin any caste, race or tribe, and any subsequent notification shall notH

vary the same. Power can be exercised only once. Article 342 containsa provision in respect of scheduled tribes. The President may, bynotification specify the tribe or tribal communities or parts of or groupswithin tribes or tribal communities which shall for the Constitution, bedeemed to be scheduled tribes in relation to that State or the Unionterritory, as the case may be. The Parliament may include in or excludefrom the list of scheduled tribes, any tribe or tribal community or part ofor group within any tribe or tribal community, but save as aforesaid, anysubsequent notification shall not vary notification issued under the saidclause. Thus, the power to vary can be exercised only once. similarprovision has been added in Article 342A concerning socially andeducationally backward classes.

99.Article 243T deals with reservation of seats for scheduledcastes and scheduled tribes in every municipality in proportion to thepopulation of the scheduled castes or scheduled tribes in the municipalarea to the total population of that area and provides for rotation ofseats. Article 243D provides for reservation of seats for scheduled castesand scheduled tribes in every Panchayat, and Panchayat is constitutedin every State, Panchayat at the village, intermediate and district levelsas provided in Article 243B. It is mandatory to constitute such Panchayatat the district level in State having population exceeding 20 lakhs.

100.Article 244, with which we are concerned in the presentmatter, provides for the administration of scheduled areas and tribal areas.The Constitution is spatially it provides Scheduled Areas under Article244, Schedule V, Schedule VI, and special provisions have been madeconcerning various States under Articles 370, 371A to 371J. For betteradministration, the Constitution has divided India into States and UnionTerritories as per Articles 3 and 4.

101.Concerning classification in constitutional dispensation forscheduled castes and scheduled tribes, Dr. Ambedkar’s speech in theConstituent Assembly Debates, page 979, 11[th] at pages 979-80 is referredto by Dr. Dhawan. Same is extracted hereunder:

“We must begin by acknowledging the fact that there is completeabsence of two things in Indian Society. One of these is equality.On the social plane, we have in India society based on theprinciple of graded inequality, which means elevation for someand degradation for others. On the economic plane, we have asociety in which there are some who have immense wealth as

Aagainst many who live in abject poverty. On the 26[th] of January,we are going to enter into life of contradictions. In politics, wewill have equality and in social and economic life we will haveinequality. In politics we will be recognizing the principle of oneman one vote one value. In our social and economic life we shall,by reason of our social and economic structure, continue to defyBthe principle of one man one vote one value. How long shall wecontinue to live this life of contradictions? How long shall wecontinue to deny equality in our social and economic life? If wecontinue to deny it for long, we shall do so by putting out politicaldemocracy in peril. We must remove this contradiction at theCearliest possible moment or else those suffer from inequality willblow up the structure of political democracy which this Assemblyhas so laboriously built up.

The second thing we are wanting in is recognition of theprinciple of fraternity. What does fraternity mean? FraternityDmeans sense of common brotherhood of all Indians - if Indiansthink of themselves as being one people. It is the principle whichgives unity and solidarity to social life… The sooner we realizethat we are not as yet nation and seriously think of ways andmeans of realizing this goal, the better for us….. For fraternitycan be fact, only where there is nation. Without fraternity,Eequality and liberty will be no deeper than coat of paint.”

102.The scheduled castes and scheduled tribes have been providedwith special measures to make them equal to the others. Efforts havebeen made to protect their land and property by enacting various laws.Special provisions have also been carved out to preserve their humanFdignity with respect, in the shape of trusts in Scheduled Castes andScheduled Tribes (Prevention of Atrocities) Act, 1989. The scheduledcastes and scheduled tribes were making struggle for freedom andvarious rights in the country. They suffered discrimination; fruits ofdevelopment have not percolated down to them. They remained anGunequal and vulnerable section of the society and treated for centuriesas outcasts socially. That is the basis for providing them reservation andspecial treatment to provide them upliftment and to eradicate theirsufferings. We have not been able to eradicate untouchability in the realsense so far and to provide safety and security to downtrodden classand to ensure that their rights are preserved and protected, and theyHequally enjoy frugal comforts of life.

103.Concerning tribals, we see that there are several schemesfor their upliftment, but we still see that at certain places, they are stillkept in isolation and are not even able to get basic amenities, education,and frugal comforts of life. These classes have an equal right to lifevailable to all human beings. Considering the social backwardness, whichincludes economic aspects also, these are the classes that have sufferedhistoric disabilities arising from discrimination, poverty, educationalbackwardness to provide them empowerment and to make them part ofthe mainstream. Special provisions have been carved out in theConstitution. Article 16(4) is not an exception to Article 16(1) being partof equality. The reservation can be rectified. Section 16(4) aims at groupbackwardness. Reservations are provided due to discrimination anddisadvantages suffered by the backward classes, scheduled castes andscheduled tribes for sharing the State power.

104.The concept of sharing State power was considered in IndraSawhney (supra). Sawant, J., in his opinion, dealt with the idea of sharingof State power thus:

“483. That only economic backwardness was not in thecontemplation of the Constitution is made further clear by thefact that at the time of the First Amendment to the Constitutionwhich added clause (4) to Article 15 of the Constitution, one ofthe Members, Prof. K.T. Shah wanted the elimination of the word“classes” in and the addition of the word “economically” to thequalifiers of the term “backward classes”. This Amendment wasnot accepted. Prime Minister Nehru himself stated that the additionof the word “economically” would put the language of the articleat variance with that of Article 340. He added that “socially” isa much wider term including many things and certainlyincluding “economically”. This shows that economicconsideration alone as the basis of backwardness was not onlynot intended but positively discarded.”

(emphasis supplied)

Justice Jeevan Reddy dealt with the same, thus:

“694. The above material makes it amply clear that the objectivebehind clause (4) of Article 16 was the sharing of State power.The State power which was almost exclusively monopolised bythe upper castes i.e., few communities, was now sought to be

made broad-based. The backward communities who were till thenkept out of apparatus of power, were sought to be inducted thereintoand since that was not practicable in the normal course, specialprovision was made to effectuate the said objective. In short,the objective behind Article 16(4) is empowerment of thedeprived backward communities — to give them share inthe administrative apparatus and in the governance of thecommunity.

750. Dr Rajeev Dhavan, learned counsel appearing forSrinarayana Dharma Paripalana Yogam (an association of Ezhavasin Kerala) submitted that Articles 16(4) and 15(4) occupy differentfields and serve different purposes. Whereas Article 15(4)contemplates positive action programmes, Article 16(4) enablesthe State to undertake schemes of positive discrimination. Forthis reason, the class of intended beneficiaries under both theclauses is different. The social and educational backwardnesswhich is the basis of identifying backwardness under Article 15(4)is only partly true in the case of ‘backward class of citizens’ inArticle 16(4). The expression “any backward class of citizens”occurring in Article 16(4) must be understood in the light of thepurpose of the said clause namely, empowerment of those groupsand classes which have been kept out of the administration —classes which have suffered historic disabilities arising fromdiscrimination or disadvantage or both and who must now beprovided entry into the administrative apparatus. In the light ofthe fact that the Scheduled Castes and Scheduled Tribes werealso intended to be beneficiaries of Article 16(4) there is no reasonwhy caste cannot be an exclusive criterion for determiningbeneficiaries under Article 16(4). Counsel emphasised the factthat Article 16(4) speaks of group protection and not individualprotection.

788. Further, if one keeps in mind the context in which Article16(4) was enacted it would be clear that the accent was uponsocial backwardness. It goes without saying that in the Indiancontext, social backwardness leads to educational backwardnessand both of them together lead to poverty — which in turn breedsand perpetuates the social and educational backwardness. Theyfeed upon each other constituting vicious circle. It is well-

known fact that till independence the administrative apparatuswas manned almost exclusively by members of the ‘upper’ castes.The Shudras, the Scheduled Castes and the Scheduled Tribes andother similar backward social groups among Muslims andChristians had practically no entry into the administrative apparatus.It was this imbalance which was sought to be redressed byproviding for reservations in favour of such backward classes. Inthis sense Dr Rajeev Dhavan may be right when he says that theobject of Article 16(4) was “empowerment” of the backwardclasses. The idea was to enable them to share the state power.We are, accordingly, of the opinion that the backwardnesscontemplated by Article 16(4) is mainly social backwardness. Itwould not be correct to say that the backwardness under Article16(4) should be both social and educational. The Scheduled Tribesand the Scheduled Castes are without doubt backward for thepurposes of the clause; no one has suggested that they shouldsatisfy the test of social and educational backwardness. It isnecessary to state at this stage that the Mandal Commissionappointed under Article 340 was concerned only with the sociallyand educationally backward classes contemplated by the saidarticle. Even so, it is evident that social backwardness has beengiven precedence over others by the Mandal Commission — 12out of 22 total points. Social backwardness — it may be reiterated— leads to educational and economic backwardness. No objectioncan be, nor is taken, to the validity and relevancy of the criteriaadopted by the Mandal Commission. For proper appreciation ofthe criteria adopted by the Mandal Commission and the difficultiesin the way of evolving the criteria of backwardness, one mustread closely Chapters III and XI of Volume I along withAppendixes XII and XXI in Volume II. Appendix XII is the Reportof the Research Planning Team of the Sociologists while AppendixXXI is the ‘Final List of Tables’ adopted in the course of socio-educational survey. In particular, one may read paras 11.18 to11.22 in Chapter XI, which are quoted hereunder for readyreference:

“11.18. Technical Committee constituted Sub-Committeeof Experts (Appendix-20, Volume II) to help the Commissionprepare ‘Indicators of Backwardness’ for analysing data containedin computerised tables. After series of meetings and lot of

testing of proposed indicators against the tabulated data, thenumber of tables actually required for the Commission’s workwas reduced to 31 (Appendix-21, Volume II). The formulationand refinement of indicators involved testing and validation checksat every stage.

11.19. In this connection, it may be useful to point out thatin social sciences no mathematical formulae or precise bench-marks are available for determining various social traits. surveyof the above type has to tread warily on unfamiliar ground andevolve its own norms and bench-marks. This exercise was full ofhidden pitfalls and two simple examples are given below to illustratethis point.

11.20. In Balaji case the Supreme Court held that if aparticular community is to be treated as educationally backward,the divergence between its educational level and that of the Stateaverage should not be marginal but substantial. The Courtconsidered 50% divergence to be satisfactory. Now, 80% of thepopulation of Bihar (1971 Census) is illiterate. To beat thispercentage figure by margin of 50% will mean that 120%members of caste/class should be illiterates. In fact it will beseen that in this case even 25% divergence will stretch us to themaximum saturation point of 100%.11.21. In the Indian situation where vast majority of thepeople are illiterate, poor or backward, one has to be very carefulin setting deviations from the norms as, in our conditions, normsthemselves are very low. For example, Per Capita ConsumerExpenditure for 1977-78 at current prices was Rs 991 per annum.For the same period, the poverty line for urban areas was at Rs900 per annum and for rural areas at Rs 780. It will be seen thatthis poverty line is quite close to the Per Capita ConsumerExpenditure of an average Indian. Now following the dictum ofBalaji case, if 50% deviation from this average Per CapitaConsumer Expenditure was to be accepted to identify‘economically backward’ classes, their income level will have tobe 50% below the Per Capita Consumer Expenditure i.e. lessthan Rs 495.5 per year. This figure is so much below the povertyline both in urban and rural areas that most of the people may dieof starvation before they qualify for such distinction.

11.22. In view of the above, ‘Indicators for Backwardness’were tested against various cut-off points. For doing so, about adozen castes well-known for their social and educationalbackwardness were selected from amongst the castes coveredby our survey in particular State. These were treated as ‘Control’and validation checks were carried out by testing them against‘Indicators’ at various cut-off points. For instance, one of the‘Indicators’ for social backwardness is the rate of student drop-outs in the age group 5-15 years as compared to the State average.As result of the above tests, it was seen that in educationallybackward castes this rate is at least 25% above the State average.Further, it was also noticed that this deviation of 25% from theState average in the case of most of the ‘Indicators’ gavesatisfactory results. In view of this, wherever an ‘Indicator’ wasbased on deviation from the State average, it was fixed at 25%,because deviation of 50% was seen to give wholly unsatisfactoryresults and, at times, to create anomalous situations.”

(emphasis supplied by us)

(a). In Indra Sawhney (supra), the Court held that reservation isnot proportionate representation but adequate, thus:

807. We must, however, point out that clause (4) speaks ofadequate representation and not proportionate representation.Adequate representation cannot be read as proportionaterepresentation. Principle of proportionate representation isaccepted only in Articles 330 and 332 of the Constitution and thattoo for limited period. These articles speak of reservation ofseats in Lok Sabha and the State legislatures in favour of ScheduledTribes and Scheduled Castes proportionate to their population,but they are only temporary and special provisions. It is thereforenot possible to accept the theory of proportionate representationthough the proportion of population of backward classes to thetotal population would certainly be relevant. Just as every powermust be exercised reasonably and fairly, the power conferred byclause (4) of Article 16 should also be exercised in fair mannerand within reasonable limits — and what is more reasonable thanto say that reservation under clause (4) shall not exceed 50% ofthe appointments or posts, barring certain extraordinary situationsas explained hereinafter. From this point of view, the 27%

reservation provided by the impugned Memorandums in favourof backward classes is well within the reasonable limits. Togetherwith reservation in favour of Scheduled Castes and ScheduledTribes, it comes to total of 49.5%. In this connection, referencemay be had to the Full Bench decision of the Andhra PradeshHigh Court in V. Narayana Rao v. State of A.P., striking downthe enhancement of reservation from 25% to 44% for OBCs.The said enhancement had the effect of taking the total reservationunder Article 16(4) to 65%.

(b). The expression ‘socially backward’ holds the key to definebackward as held in Indra Sawhney (supra):

“774. In our opinion too, the words “class of citizens — notadequately represented in the services under the State” wouldhave been vague and uncertain description. By adding the word“backward” and by the speeches of Dr Ambedkar and Shri K.M.Munshi, it was made clear that the “class of citizens … notadequately represented in the services under the State” meantonly those classes of citizens who were not so represented onaccount of their social backwardness.”

(c). In Indra Sawhney (supra), the Court further laid down thatreservation are not anti-meritarian. Following is the relevant discussion:

“832. In Balaji and other cases, it was assumed that reservationsare necessarily anti-meritarian. For example, in Janki PrasadParimoo, it was observed, “it is implicit in the idea of reservationthat less meritorious person be preferred to another who is moremeritorious.” To the same effect is the opinion of Khanna, J inThomas, though it is minority opinion. Even Subba Rao, J, whodid not agree with this view, did recognize some force in it. In hisdissenting opinion in Devadasan while holding that there is noconflict between Article 16(4) and Article 335, he did say, “it isinevitable in the nature of reservation that there will be loweringof standards to some extent,” but, he said, on that account, theprovision cannot be said to be bad, inasmuch as in that case, theState had, as matter of fact, prescribed minimum qualifications,and only those possessing such minimum qualifications wereappointed. This view was, however, not accepted by Krishna Iyer,J in Thomas. He said: (SCC p. 366, para 132)

“[E]fficiency means, in terms of good government, not marksin examinations only, but responsible and responsive service tothe people. chaotic genius is grave danger in publicadministration. The inputs of efficiency include sense of belongingand of accountability which springs in the bosom of the bureaucracy(not pejoratively used) if its composition takes in also the weakersegments of ‘We, the people of India’. No other understandingcan reconcile the claim of the radical present and the hangover ofthe unjust past.”

833. similar view was expressed in Vasanth Kumar byChinnappa Reddy, J. The learned Judge said (SCC p. 739, para36)

“[T]he mere securing of high marks at an examination maynot necessarily mark out good administrator. An efficientadministrator, one takes it, must be one who possesses amongother qualities the capacity to understand with sympathy and,therefore, to tackle bravely the problems of large segment ofpopulation constituting the weaker sections of the people. And,who better than the ones belonging to those very sections? Whynot ask ourselves why 35 years after Independence, the positionof the Scheduled Castes, etc. has not greatly improved? Is it not alegitimate question to ask whether things might have beendifferent, had the District Administrators and the State and CentralBureaucrats been drawn in larger numbers from these classes?Courts are not equipped to answer these questions, but the courtsmay not interfere with the honest endeavours of the Governmentto find answers and solutions. We do not mean to say thatefficiency in the civil service is unnecessary or that it is amyth. All that we mean to say is that one need not make afastidious fetish of it.”

834. It is submitted by the learned counsel for petitioners thatreservation necessarily means appointment of less meritoriouspersons, which in turn leads to lowering of efficiency ofadministration. The submission, therefore, is that reservation shouldbe confined to small minority of appointments/posts, — in anyevent, to not more than 30%, the figure referred to in the speechof Dr Ambedkar in the Constituent Assembly. The mandate ofArticle 335, it is argued, implies that reservations should be so

operated as not to affect the efficiency of administration. EvenArticle 16 and the directive of Article 46, it is said, should be readsubject to the aforesaid mandate of Article 335.

835. The respondents, on the other hand, contend that the marksobtained at the examination/test/interview at the stage of entryinto service is not an indicium of the inherent merit of candidate.They rely upon the opinion of Douglas, J in DeFunis where thelearned Judge illustrates the said aspect by giving the example ofa candidate coming from disadvantaged sections of society andyet obtaining reasonably good scores — thus manifesting his“promise and potential” — vis-a-vis candidate from higherstrata obtaining higher scores. (His opinion is referred to in para716.) On account of the disadvantages suffered by them and thelack of opportunities, — the respondents say — members ofbackward classes of citizens may not score equally with themembers of socially advanced classes at the inception but in courseof time, they would. It would be fallacious to presume that naturehas endowed intelligence only to the members of the forwardclasses. It is to be found everywhere. It only requires an opportunityto prove itself. The directive in Article 46 must be understood andimplemented keeping in view these aspects, say the respondents.

836. We do not think it necessary to express ourselves at anylength on the correctness or otherwise of the opposing points ofview referred to above. (It is, however, necessary to point outthat the mandate — if it can be called that — of Article 335 is totake the claims of members of SC/ST into consideration, consistentwith the maintenance of efficiency of administration. It would bea misreading of the article to say that the mandate is maintenanceof efficiency of administration.) Maybe, efficiency, competenceand merit are not synonymous concepts; maybe, it is wrong totreat merit as synonymous with efficiency in administration andthat merit is but component of the efficiency of an administrator.Even so, the relevance and significance of merit at the stage ofinitial recruitment cannot be ignored. It cannot also be ignoredthat the very idea of reservation implies selection of lessmeritorious person. At the same time, we recognise that thismuch cost has to be paid, if the constitutional promise of socialjustice is to be redeemed. We also firmly believe that given an

opportunity, members of these classes are bound to overcometheir initial disadvantages and would compete with — and may, insome cases, excel — members of open competition. It isundeniable that nature has endowed merit upon members ofbackward classes as much as it has endowed upon members ofother classes and that what is required is an opportunity to proveit. It may not, therefore, be said that reservations are anti-meritarian. Merit there is even among the reserved candidatesand the small difference, that may be allowed at the stage ofinitial recruitment is bound to disappear in course of time. Thesemembers too will compete with and improve their efficiency alongwith others.837. Having said this, we must append note of clarification. Insome cases arising under Article 15, this Court has upheld theremoval of minimum qualifying marks, in the case of ScheduledCaste/Scheduled Tribe candidates, in the matter of admission tomedical courses. For example, in State of M.P. v. Nivedita Jainadmission to medical course was regulated by an entrance test(called Pre-Medical Test). For general candidates, the minimumqualifying marks were 50% in the aggregate and 33% in eachsubject. For Scheduled Caste/Scheduled Tribe candidates,however, it was 40% and 30% respectively. On finding thatScheduled Caste/Scheduled Tribe candidates equal to the numberof the seats reserved for them did not qualify on the above standard,the Government did away with the said minimum standardaltogether. The Government’s action was challenged in this Courtbut was upheld. Since it was case under Article 15, Article 335had no relevance and was not applied. But in the case of Article16, Article 335 would be relevant and any order on the lines of theorder of the Government of Madhya Pradesh (in Nivedita Jain)would not be permissible, being inconsistent with the efficiency ofadministration. To wit, in the matter of appointment of MedicalOfficers, the Government or the Public Service Commission cannotsay that there shall be no minimum qualifying marks for ScheduledCaste/Scheduled Tribe candidates, while prescribing minimumfor others. It may be permissible for the Government to prescribea reasonably lower standard for Scheduled Castes/ScheduledTribes/Backward Classes — consistent with the requirements ofefficiency of administration — it would not be permissible not to

prescribe any such minimum standard at all. While prescribingthe lower minimum standard for reserved category, the natureof duties attached to the post and the interest of the generalpublic should also be kept in mind.

838. While on Article 335, we are of the opinion that thereBare certain services and positions where either on account of thenature of duties attached to them or the level (in the hierarchy) atwhich they obtain, merit as explained hereinabove, alone counts.In such situations, it may not be advisable to provide forreservations. For example, technical posts in research anddevelopment organisations/departments/institutions, in specialitiesCand super-specialities in medicine, engineering and other suchcourses in physical sciences and mathematics, in defence servicesand in the establishments connected therewith. Similarly, in thecase of posts at the higher echelons e.g., Professors (inEducation), Pilots in Indian Airlines and Air India, ScientistsDand Technicians in nuclear and space application, provisionfor reservation would not be advisable.”

(emphasis supplied by us)

This Court observed that some relaxation has to be grantedconsistent with the requirement of administration, to do social justice, itEwould not be permissible not to prescribe any minimum standard at all.This Court also observed that as to specialty in technical posts andresearch development, medical engineering, defence services, physics,and mathematics, provision for reservation would not be advisable.

(d). In Indra Sawhney (supra), the Court held that reservationFcould be provided by executive order, thus:

“735. Shri K.K. Venugopal learned counsel for the petitioner inwrit petition No. 930 of 1990 submits that the “provision”contemplated by clause (4) of Article 16 can be made only by andshould necessarily be made by the legislative wing of the StateGand not by the executive or any other authority. He disputes thecorrectness of the holding in Balaji negativing an identicalcontention. He submits that since the provision made under Article16(4) affects the fundamental rights of other citizens, such aprovision can be made only by the Parliament/Legislature. Hesubmits that if the power of making the “provision” is given to the

executive, it will give room for any amount of abuse. Accordingto the learned counsel, the political executive, owing to thedegeneration of the electoral process, normally acts out of politicaland electoral compulsions, for which reason it may not act fairlyand independently. If, on the other hand, the provision is to bemade by the legislative wing of the State, it will not only providean opportunity for debate and discussion in the legislature whereseveral shades of opinion are represented but balanced andunbiased decision free from the allurements of electoral gains ismore likely to emerge from such deliberating body. ShriVenugopal cites the example of Tamil Nadu where, accordingto him, before every general election few communities areadded to the list of backward classes, only with view towinning them over to the ruling party. We are not concernedwith the aspect of what is ideal or desirable but with what isthe proper meaning to be ascribed to the expression ‘provision’in Article 16(4) having regard to the context. The use of theexpression ‘provision’ in clause (4) of Article 16 appears to us tobe not without design. According to the definition of ‘State’ inArticle 12, it includes not merely the Government and Parliamentof India and Government and Legislature of each of the Statesbut all local authorities and other authorities within the territory ofIndia or under the control of the Government of India which meansthat such measure of reservation can be provided not only in thematter of services under the Central and State Governments butalso in the services of local and other authorities referred to inArticle 12. The expression ‘Local Authority’ is defined in Section3(31) of the General Clauses Act. It takes in all municipalities,Panchayats and other similar bodies. The expression ‘otherauthorities’ has received extensive attention from the court. Itincludes all statutory authorities and other agencies andinstrumentalities of the State Government/Central Government.Now, would it be reasonable, possible or practicable to say thatthe Parliament or the Legislature of the State should provide forreservation of posts/appointments in the services of all such bodiesbesides providing for in respect of services under the Central/State Government? This aspect would become clearer if we noticethe definition of “Law” in Article 13(3)(a). It reads:

CDEFG

“13(3) In this article, unless the context otherwise requires,—

(a) “law” includes any Ordinance, order, bye-law, rule, regulation,notification, custom or usage having in the territory of India theforce of law; …”

736. The words “order”, “bye-law”, “rule” and “regulation” inthis definition are significant. Reading the definition of “State” inArticle 12 and of “law” in Article 13(3)(a), it becomes clear thata measure of the nature contemplated by Article 16(4) can beprovided not only by the Parliament/Legislature but also by theexecutive in respect of Central/State services and by the localbodies and “other authorities” contemplated by Article 12, in respectof their respective services. Some of the local bodies and some ofthe statutory corporations like universities may have their ownlegislative wings. In such situation, it would be unreasonableand inappropriate to insist that reservation in all these servicesshould be provided by Parliament/Legislature. The situation andcircumstances of each of these bodies may vary. The ruleregarding reservation has to be framed to suit the particularsituations. All this cannot reasonably be done by Parliament/Legislature.737. Even textually speaking, the contention cannot be accepted.The very use of the word “provision” in Article 16(4) is significant.Whereas clauses (3) and (5) of Article 16 — and clauses (2) to(6) of Article 19 — use the word “law”, Article 16(4) uses theworld “provision”. Regulation of service conditions by orders andrules made by the executive was well-known feature at thetime of the framing of the Constitution. Probably for this reason, adeliberate departure has been made in the case of clause (4).Accordingly, we hold, agreeing with Balaji, that the“provision” contemplated by Article 16(4) can also be madeby the executive wing of the Union or of the State, as the casemay be, as has been done in the present case.Balaji has beenfollowed recently in Comptroller and Auditor-General of Indiav. Mohan Lal Mehrotra. With respect to the argument of abuseof power by the political executive, we may say that there isadequate safeguard against misuse by the political executive ofthe power under Article 16(4) in the provision itself. Anydetermination of backwardness is not subjective exercise nor

matter of subjective satisfaction. As held herein — as also byearlier judgments — the exercise is an objective one. Certainobjective social and other criteria have to be satisfied before anygroup or class of citizens could be treated as backward. If theexecutive includes, for collateral reasons, groups or classes notsatisfying the relevant criteria, it would be clear case of fraudon power.

Question 1(b):

Whether an executive order making ‘provision’ under Article16(4) is enforceable forthwith?

738. question is raised whether an executive order made interms of Article 16(4) is effective and enforceable by itself orwhether it is necessary that the said “provision” is enacted into alaw made by the appropriate legislature under Article 309 or isincorporated into and issued as Rule by the President/Governorunder the proviso to Article 309 for it to become enforceable? MrRam Jethmalani submits that Article 16(4) is merely declaratoryin nature, that it is an enabling provision and that it is not sourceof power by itself. He submits that unless made into law by theappropriate legislature or issued as rule in terms of the provisoto Article 309, the “provision” so made by the executive does notbecome enforceable. At the same time, he submits that theimpugned Memorandums must be deemed to be and must betreated as Rules made and issued under the proviso to Article 309of the Constitution. We find it difficult to agree with Shri Jethmalani.Once we hold that provision under Article 16(4) can bemade by the executive, it must necessarily follow that such aprovision is effective the moment it is made. ConstitutionBench of this Court in B.S. Yadav, (Y.V. Chandrachud, CJ,speaking for the Bench) has observed:

“Article 235 does not confer upon the High Court thepower to make rules relating to conditions of service of judicialofficers attached to district courts and the courts subordinatethereto. Whenever it was intended to confer on any authoritythe power to make any special provisions or rules, includingrules relating to conditions of service, the Constitution has statedso in express terms. See for example Articles 15(4), 16(4),77(3), 87(2), 118, 145(1), 146(1) and (2), 148(5), 166(3), 176(2),

187(3), 208, 225, 227(2) and (3), 229(1) and (2), 234, 237 and283(1) and (2).”

740. It would, therefore, follow that until law is made orrules are issued under Article 309 with respect to reservationin favour of backward classes, it would always be open tothe Executive Government to provide for reservation ofappointments/posts in favour of Backward Classes by anexecutive order. We cannot also agree with Shri Jethmalani thatthe impugned Memorandums should be treated as Rules madeunder the proviso to Article 309. There is nothing in them suggestingeven distantly that they were issued under the proviso to Article309. They were never intended to be so, nor is that the stand ofthe Union Government before us. They are executive orders issuedunder Article 73 of the Constitution read with clause (4) of Article16. The mere omission of recital “in the name and by order ofthe President of India” does not affect the validity or enforceabilityof the orders, as held by this Court repeatedly.”

(emphasis supplied by us)

(e). What is sought to be achieved by Articles 14 and 16 is equalityand equality of opportunity. In Indra Sawhney (supra), this Courtemphasised that founding fathers never envisaged reservation of all seats,and 50% shall be the rule. Some relaxation may become imperative, butextreme caution is to be exercised, and special case is to be made forexceeding reservation more than 50%. This Court held:

“808. It needs no emphasis to say that the principal aim of Articles14 and 16 is equality and equality of opportunity and that clause(4) of Article 16 is but means of achieving the very sameobjective. Clause (4) is special provision — though not anexception to clause (1). Both the provisions have to be harmonised,keeping in mind the fact that both are but the re-statements of theprinciple of equality enshrined in Article 14. The provision underArticle 16(4) — conceived in the interest of certain sections ofsociety — should be balanced against the guarantee of equalityenshrined in clause (1) of Article 16 which is guarantee held outto every citizen and to the entire society. It is relevant to point outthat Dr Ambedkar himself contemplated reservation being“confined to minority of seats” (See his speech in Constituent

Assembly, set out in para 693). No other member of the ConstituentAssembly suggested otherwise. It is, thus, clear that reservationof majority of seats was never envisaged by the FoundingFathers. Nor are we satisfied that the present context requiresus to depart from that concept.

809.From the above discussion, the irresistible conclusion thatfollows is that the reservations contemplated in clause (4) ofArticle 16 should not exceed 50%.

810. While 50% shall be the rule, it is necessary not to put out ofconsideration certain extraordinary situations inherent in the greatdiversity of this country and the people. It might happen that infar-flung and remote areas the population inhabiting those areasmight, on account of their being out of the mainstream of nationallife and in view of conditions peculiar to and characteristically tothem, need to be treated in different way, some relaxation inthis strict rule may become imperative. In doing so, extremecaution is to be exercised and special case made out.

811. In this connection it is well to remember that the reservationsunder Article 16(4) do not operate like communal reservation. Itmay well happen that some members belonging to, say, ScheduledCastes get selected in the open competition field on the basis oftheir own merit; they will not be counted against the quota reservedfor Scheduled Castes; they will be treated as open competitioncandidates.”

(emphasis supplied by us)

105. It is apparent that despite more than 72 years of attainingindependence, we are not able to provide benefits to the bottom line, i.e.,down-trodden and oppressed classes. Benefits meant to such classesare not reaching them. The question is writ large how to trickle downthe benefits. Panchayat, Gram Sabha has been empowered, but still,benefits are not reaching as envisaged. The right to information systemhas to be strengthened at the village level. They must know how themoney meant for development has been utilised. Transparency ofadministration is vital for the removal of corruption. They are required tobe motivated. They must know what is allocated to them and how it isspent. There is need to improve the system, ensuring the implementationof beneficial measures.

A106.It was envisaged that social disparities, economic andbackwardness should be wiped out within period of 10 years, butgradually, amendments have been made, and there is no review of thelists nor the provisions of the reservation have come to an end. Instead,there is demand to increase them and to provide reservations withinthe reservation. It is very hard for any elected government to have theBpolitical will to meet with the challenges arising out of the aforesaidscenario. By grant of privileges and amenities, it was felt that theaspirations of socially and economically backward classes would be met,and inequalities would diminish.

107.Reservation provided to scheduled tribes and constitution ofCscheduled areas is for the reason as systems concerning way of life aredifferent. They were in isolation, differed in various aspects from commoncivilisation such as the delivery of justice, as regards legal system, theculture, way of life differs from the ordinary people, their language andtheir primitive way of life makes them unfit to put up with the mainstreamDand to be governed by the ordinary laws. It was intended by the protectiveterms granted in the constitutional provisions that they will one day bethe part of the mainstream and would not remain isolated for all time tocome. The Scheduled Tribes Order, 1950 was promulgated to includegroups and communities which were not part of social society, based oncharacteristic and culture, which developed by that time. The formalEeducation, by and large, failed to reach them, and they remained adisadvantaged class, as such required helping hand to uplift them andto make them contribute to the national development and not to remainpart of the primitive culture. The purpose of the constitutional provisionsis not to keep them in isolation but to make them part of the mainstream.FThey are not supposed to be seen as human zoo and source ofenjoyment of primitive culture and for dance performances. The benefitsof developments have not reached them, and they remain isolated invarious parts of the country. The social and economic upliftment andeducation are necessary for tribals to make them equal.

G108.Question emanating in the case is how to balance the rightsof scheduled castes and scheduled tribes. Whether providing 100%reservation in favour of any particular class is permissible?”

109.The High Court referred to the Constituent Assembly Debates.What was stated by Dr. Ambedkar in an answer concerning backwardHcommunity;

“A backward community is community which is backward inthe opinion of the Government. My honourable friend Mr.T.T.Krishnamachari asked me whether this rule will be justiciable. Itis rather difficult to give dogmatic answer. Personally, I think itwould be justiciable matter. If the local Government included inthis category of reservations such large number of seats; I thinkone could very well go to the Federal Court and the SupremeCourt and say that the reservation is of such magnitude that therule regarding equality of opportunity has been destroyed and theCourt will then come to the conclusion whether the localGovernment or the State Government has acted in reasonableand prudent manner.”

(emphasis supplied)

110.In M.R. Balaji & Ors. v. State of Mysore & Ors., (1963)Supp 1 SCR 439, this Court held that total reservations in favour ofdisadvantaged sections of the society could not exceed 50% thus:

“16. It now remains to consider the report made by the NaganGowda Committee appointed by the State. This report proceedson the basis that higher social status has generally been accordedon the basis of caste for centuries; and so, it takes the view thatthe low social position of any community is, therefore, mainly dueto the caste system. According to the Report, there are amplereasons to conclude that social backwardness is based mainly onracial, tribal, caste and denominational differences, even thougheconomic backwardness might have contributed to socialbackwardness. It would thus be clear that the Committeeapproached its problem of enumerating and classifying the sociallyand educationally backward communities on the basis that thesocial backwardness depends substantially on the caste to whichthe community belongs, though it recognised that economiccondition may be contributory factor. The classification madeby the Committee and the enumeration of the backwardcommunities which it adopted shows that the Committee virtuallyequated the classes with the castes. According to the Committee,the entire Lingayat community was socially forward, and that allsections of Vokkaligas, excluding Bhunts, were socially backward.With regard to the Muslims, the majority of the Committee agreedthat the Muslim community as whole should be classified as

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126SUPREME COURT REPORTS

Asocially backward. The Committee further decided that amongstthe backward communities two divisions should be made (i) thebackward and (ii) the More Backward. In making this distinction,the Committee applied one test. It enquired: “Was the standard ofeducation in the community in question less than 50% of the Stateaverage? If it was, the community should be regarded as moreBbackward; if it was not, the community should be regarded asbackward.” As to the extent of reservation in educationalinstitutions, the Committee’s recommendation was that 28% shouldbe reserved for backward and 22% for more backward. In otherwords, 50% should be reserved for the whole group of backwardCcommunities besides 15% and 3% which had already beenreserved for the Scheduled Castes and Scheduled Tribesrespectively. That is how according to the Committee, 68% wascarved out by reservation for the betterment of the BackwardClasses and the Scheduled Castes and Tribes. It is on the basis ofthese recommendations that the Government proceeded to makeDits impugned order.”

111.In State of Kerala v. N.M. Thomas, (1976) 2 SCC 310, theCourt observed that the rule evolved in Balaji (supra) that reservationscannot exceed 50% is merely rule of caution.

E112.In M. Nagaraj and Ors. v. Union of India and Ors., (2006)8 SCC 212, it was held that the ceiling limit of the reservation is 50%without which structure of equality of opportunity in Article 16 wouldcollapse. This Court held:

“122.We reiterate that the ceiling limit of 50%, the concept ofFcreamy layer and the compelling reasons, namely, backwardness,the inadequacy of representation and overall administrativeefficiency are all constitutional requirements without which thestructure of equality of opportunity inArticle 16 would collapse.”

(emphasis supplied by us)

G113.Reliance has also been placed on Union of India & Ors. v.Rakesh Kumar & Ors., (2010) 4 SCC 50 on behalf of the respondents,which related to reservation in Panchayats. Considering the provisionsof Articles 243, 243D, 15(4), 16(4) and the Fifth Schedule of theConstitution and under Part IX to extend Panchayati Raj system toscheduled areas, it was held that post of Chairperson of Panchayat,H

Scheduled Tribes in the scheduled areas cannot be put into disadvantagedposition. Because of the peculiar conditions in those areas, it is permissiblethat chairpersons of scheduled areas should be exclusively from scheduledtribes only. It was also held that Article 243D envisages proportionaterepresentation and is distinct and an independent constitutional basis ofreservation in Panchayati Raj institutions. The reservation under Article243D cannot be compared with affirmative action measures underArticles 15(4) and 16(4), where balance is to be maintained betweenaffirmative action measures and merits. This Court pointedout thoughArticles 14, 15, and 16 provide for affirmative action measures; however,there is need for periodical review keeping in view the changing socialand economic conditions.

(a). The difference between Article 243D and Article 16(4) waspointed out in Rakesh Kumar (supra) thus:

“42. Especially on the unviability of the analogy between Article16(4) and Article 243-D, we are in agreement with decision ofthe Bombay High Court, reported as Vinayakrao GangaramjiDeshmukh v. P.C. Agrawal, AIR 1999 Bom 142. That caseinvolved fact situation where the Chairperson position in apanchayat was reserved in favour of Scheduled Caste woman.In the course of upholding this reservation, it was held: (AIR p.143, para 4)

“4. … Now, after the seventy-third and seventy-fourthconstitutional amendments, the constitution of local bodies hasbeen granted constitutional protection and Article 243-Dmandates that seat be reserved for the Scheduled Castesand Scheduled Tribes in every Panchayat and sub-article (4)of the said Article 243-D also directs that the offices of theChairpersons in the panchayats at the village or any other levelshall be reserved for the Scheduled Castes, the ScheduledTribes and women in such manner as the legislature of Statemay, by law, provide. Therefore, the reservation in the localbodies like the Village Panchayat is not governed by Article16(4), which speaks about the reservation in the publicemployment, but separate constitutional power directs thereservation in such local bodies.”

43. For the sake of argument, even if an analogy between Article243-D and Article 16(4) was viable, close reading of Indra

Sawhney, 1992 Supp (3) SCC 217, decision will reveal that eventhough an upper limit of 50% was prescribed for reservations inpublic employment, the said decision did recognise the need forexceptional treatment in some circumstances. This is evident fromthe following words (at paras 809-10): (SCC p. 735)

“809. From the above discussion, the irresistible conclusionthat follows is that the reservations contemplated in clause (4) ofArticle 16 should not exceed 50%.

810. While 50% shall be the rule, it is necessary not to putout of consideration certain extraordinary situations inherent inthe great diversity of this country and the people. It might happenthat in far-flung and remote areas the population inhabiting thoseareas might, on account of their being out of the mainstream ofnational life and in view of conditions peculiar to and characteristicalto them, need to be treated in different way, some relaxation inthis strict rule may become imperative. In doing so, extreme cautionis to be exercised and special case made out.”

(b). The departure from adequate and proportionate representationhas been considered in Rakesh Kumar (supra) thus:

“48. There is of course rational basis for departing from thenorms of “adequate representation” as well as “proportionaterepresentation” in the present case. This was necessary becauseit was found that even in the areas where Scheduled Tribes are ina relative majority, they are under-represented in the governmentalmachinery and hence vulnerable to exploitation. Even in areaswhere persons belonging to Scheduled Tribes held public positions,it is distinct possibility that the non-tribal population will come todominate the affairs. The relatively weaker position of theScheduled Tribes is also manifested through problems suchas landgrabbing by non-tribals, displacement on account of private aswell as governmental developmental activities, and the destructionof environmental resources. In order to tackle such social realities,the legislature thought it fit to depart from the norm of “proportionalrepresentation.” In this sense, it is not our job to second guesssuch policy choices.

56. In the context of reservations in panchayats, it can be reasonedthat the limitation placed on the choices available to voters is an

incidental consequence of the reservation policy. In this case, thecompelling State interest in safeguarding the interests of weakersections by ensuring their representation in local self-governmentclearly outweighs the competing interest in not curtailing thechoices available to voters. It must also be reiterated here thatthe 50% reservations in favour of STs as contemplated by thefirst proviso to Section 4(g) of the PESA Act were not struckdown in the impugned judgment. Even though it was argued beforethis Court that this provision makes departure from the norm of“proportionate representation” contemplated by Article 243-D(1),we have already explained how Article 243-M(4)(b) permits“exceptions” and “modifications” in the application of Part IX toScheduled Areas. Sections 17(B)(1), 36(B)(1) and 51(B)(1) ofJPRA merely give effect to the exceptional treatment that ismandated by the PESA Act.”

(c). This Court in Rakesh Kumar (supra) held that State ofJharkhand was also under an obligation to account for the interests ofthe other backward classes as contemplated in the Panchayati Raj Act,thus :

“57. However, in addition to the 50% reservations in favour ofScheduled Tribes, the State of Jharkhand is also under an obligationto account for the interests of Scheduled Castes and OtherBackward Classes. The same has been contemplated in Sections17(B)(2), 36(B)(2) and 51(B)(2) of JPRA which incorporate thestandard of “proportionate representation” for Scheduled Castesand Backward Classes in such manner that the total reservationsdo not exceed 80%. This does not mean that reservations willreach the 80% ceiling in all the Scheduled Areas. Since theallocation of seats in favour of Scheduled Castes and BackwardClasses has to follow the principle of proportionality, the extent oftotal reservations is likely to vary across the different territorialconstituencies identified for the purpose of elections to thepanchayats. Depending on the demographic profile of particularconstituency, it is possible that the total reservations could wellfall short of the 80% upper ceiling. However, in Scheduled Areaswhere the extent of the population belonging to the ScheduledCastes and Backward Classes exceeds 30% of the totalpopulation, the upper ceiling of 80% will become operative.

A58. Irrespective of such permutations, the legislative intent behindthe impugned provisions of JPRA is primarily that of safeguardingthe interests of persons belonging to the Scheduled Tribes category.In the light of the preceding discussion, it is our considered viewthat total reservations exceeding 50% of the seats in panchayatslocated in Scheduled Areas are permissible on account of theBexceptional treatment mandated under Article 243-M(4)(b).Therefore, we agree with the appellants and overturn the rulingof the High Court of Jharkhand on this limited point.”

(emphasis supplied by us)

C(d). The decision has been rendered in the context of reservationin Panchayat for which special provisions have been made in Article243-M(4)(b), and this Court held that the provisions of Article 243D aredistinguishable from the provisions contained in Article 16(4). It has alsobeen emphasised that the State cannot ignore the other backward andscheduled caste classes.D

114.In K. Krishna Murthy (Dr.) &Ors. v. Union of India &Anr.,(2010) 7 SCC 202, this Court observed thus:

“53. In this respect, we are in partial agreement with one of thesubmissions made by Shri M. Rama Jois that the nature ofEdisadvantages that restrict access to education and employmentcannot be readily equated with disadvantages in the realm ofpolitical representation. To be sure, backwardness in the socialand economic sense does not necessarily imply politicalbackwardness. However, the petitioner’s emphasis on thedistinction between “selection” (in case of education andFemployment) and “election” (in case of political representation)does not adequately reflect the complexities involved. It is, ofcourse, undeniable that in determining who can get access toeducation and employment, due regard must be given toconsiderations of merit and efficiency which can be measured inGan objective manner. Hence, admissions to educational institutionsand the recruitment to government jobs is ordinarily done throughmethods such as examinations, interviews or assessment of pastperformance. Since it is felt that the applicants belonging to theSC/ST/OBC categories among others are at disadvantage whenthey compete through these methods, level playing field is soughtHto be created by way of conferring reservation benefits.54. In the domain of political participation, there can be no objectiveparameters to determine who is more likely to get elected torepresentative institutions at any level. The choices of voters arenot guided by an objective assessment of candidate’s merit andefficiency. Instead, they are shaped by subjective factors such asthe candidate’s ability to canvass support, past service record,professed ideology and affiliations to organised groups amongothers. In this context, it is quite possible that candidates belongingto the SC/ST/OBC categories could demonstrate these subjectivequalities and win elections against candidates from the relativelybetter-off groups. However, such scenario cannot be presumedin all circumstances. It is quite conceivable that in some localisedsettings, backwardness in the social and economic sense can alsoact as barrier to effective political participation and representation.When it comes to creating level playing field for the purpose ofelections to local bodies, backwardness in the social and economicsense can indeed be one of the criteria for conferring reservationbenefits.

63. As noted earlier, social and economic backwardness does notnecessarily coincide with political backwardness. In this respect,the State Governments are well advised to reconfigure theirreservation policies, wherein the beneficiaries under Articles 243-D(6) and 243-T(6) need not necessarily be coterminous with theSocially and Educationally Backward Classes (SEBCs) [for thepurpose of Article 15(4)] or even the backward classes that areunderrepresented in government jobs [for the purpose of Article16(4)]. It would be safe to say that not all of the groups whichhave been given reservation benefits in the domain of educationand employment need reservations in the sphere of local self-government. This is because the barriers to political participationare not of the same character as barriers that limit access toeducation and employment. This calls for some fresh thinking andpolicy-making with regard to reservations in local self-government.

64. In the absence of explicit constitutional guidance as to thequantum of reservation in favour of backward classes in localself-government, the rule of thumb is that of proportionatereservation. However, we must lay stress on the fact that theupper ceiling of 50% (quantitative limitation) with respect to vertical

reservations in favour of SCs/STs/OBCs should not be breached.On the question of breaching this upper ceiling, the argumentsmade by the petitioners were little misconceived since theyhad accounted for vertical reservations in favour of SCs/STs/OBCs as well as horizontal reservations in favour of womento assert that the 50% ceiling had been breached in some ofthe States. This was clearly misunderstanding of the positionsince the horizontal reservations in favour of women are meantto intersect with the vertical reservations in favour of SCs/STs/OBCs, since one-third of the seats reserved for the lattercategories are to be reserved for women belonging to thesame. This means that seats earmarked for women belonging tothe general category are not accounted for if one has to gaugewhether the upper ceiling of 50% has been breached.

65. Shri Rajeev Dhavan has contended that since the contextof local self-government is different from education andemployment, the 50% ceiling for vertical reservations whichwas prescribed in Indra Sawhney, 1992 Supp (3) SCC 217,cannot be blindly imported since that case dealt withreservations in government jobs. It was further contendedthat the same decision had recognised the need for exceptionaltreatment in some circumstances, which is evident from thefollowing words: (SCC p. 735, paras 809-10)

“809. From the above discussion, the irresistible conclusionthat follows is that the reservations contemplated in clause (4) ofArticle 16 should not exceed 50%.

810. While 50% shall be the rule, it is necessary not to putout of consideration certain extraordinary situations inherent inthe great diversity of this country and the people. It might happenthat in far-flung and remote areas the population inhabiting thoseareas might, on account of their being out of the mainstream ofnational life and in view of conditions peculiar to and characteristicalto them, need to be treated in different way, some relaxation inthis strict rule may become imperative. In doing so, extreme cautionis to be exercised and special case made out.”

66. Admittedly, reservations in excess of 50% do exist in someexceptional cases, when it comes to the domain of political

representation. For instance, the Legislative Assemblies of theStates of Arunachal Pradesh, Nagaland, Meghalaya, Mizoram andSikkim have reservations that are far in excess of the 50% limit.However, such position is the outcome of exceptionalconsiderations in relation to these areas. Similarly, verticalreservations in excess of 50% are permissible in the compositionof local self-government institutions located in the Fifth ScheduleAreas.

67. In the recent decision reported as Union of India v. RakeshKumar, (2010) 4 SCC 50, this Court has explained why it may benecessary to provide reservations in favour of the Scheduled Tribesthat exceed 50% of the seats in panchayats located in theScheduled Areas. However, such exceptional considerationscannot be invoked when we are examining the quantum ofreservations in favour of backward classes for the purpose oflocal bodies located in general areas. In such circumstances, thevertical reservations in favour of SCs/STs/OBCs cannot exceedthe upper limit of 50% when taken together. It is obvious that inorder to adhere to this upper ceiling, some of the States may haveto modify their legislations so as to reduce the quantum of theexisting quotas in favour of OBCs.”

115.The decision of Bombay High Court in VinayakraoGangaramji Deshmukh v. P Agrawal, AIR 1999 Bom. 142 regardingthe distinction between Articles 243D and 16(4) was affirmed. This Courtobserved that some decisions in past examined validity of reservationsin local self-Government applying principles evolved about employmentand education. It was also observed that for scheduled castes, scheduledtribes and other backward classes categories, the level playing field issought to be created by conferring reservation benefits. In K. KrishnaMurthy (supra), this Court also emphasised that socio-economicbackwardness does not necessarily coincide with political backwardness,which need not necessarily be envisaged under Articles 15(4) and 16(4).Barriers to political participation are not of the same character as barriersthat limit access to education and employment. Concerning verticalreservations, it was said that they have to be made in the upper ceiling of50%.

The 100% reservation would amount to unreasonable and unfairand cannot be termed except as unfair and unreasonable. Thus, we are

Aof the considered opinion that providing 100% reservation to thescheduled castes and scheduled tribes were not permissible. TheGovernor in the exercise of the power conferred by para 5(1) of theFifth Schedule of the Constitution, cannot provide 100% reservation.

116.In R. Chitralekha v. State of Mysore, AIR 1964 SC 1823, itBwas laid down that reservation should not exceed 50 percent; however,a little relaxation is permissible with great care. Reservation is anexception to the general rule. The quantum of reservation should not beexcessive and societally injurious.

117.In AIIMS Students Union v. A.I.I.M.S., JT 2001 (7) SC 12,Cthe Court observed:

“Reservation, as an exception, maybe justified subject todischarging the burden of proving justification in favour of theclass which must be educationally handicapped – the reservationgeared up to getting over the handicap. The rationale of reservationDin the case of medical students must be removal of regional orclass inadequacy or like disadvantage. Even there, the quantumof reservation should not be excessive of societally injurious. Thehigher the level of the specially the lesser the role of reservation.”

118.Reliance has been placed on Lingappa Pochanna AppelwarE& Ors. v. State of Maharashtra & Ors. (1985) 1 SCC 479 in whichthe Court held that it is Constitutional duty on the State to take positiveand stem measures to ensure dignity and right to life of Scheduled Tribes.There is no quarrel with the proposition mentioned above; however,Constitutional duty has to be discharged from Constitutional perspectiveand not in violation thereof.F

119.It was argued on behalf of the respondents that the scope ofjudicial review is very limited in such cases. The court may observe duedeference to the opinion of State if the material exists to support theopinion that is formed. The decision in Indra Sawhney (supra) has beenrelied upon, in which this Court considered the question and held:G

“798. Not only should class be backward class for meritingreservations, it should also be inadequately represented in theservices under the State. The language of clause (4) makes itclear that the question of whether backward class of citizens isnot adequately represented in the services under the State is aHmatter within the subjective satisfaction of the State. This is evident

from the fact that the said requirement is preceded by the words“in the opinion of the State”. This opinion can be formed by theState on its own, i.e., on the basis of the material it has in itspossession already, or it may gather such material through aCommission/Committee, person or authority. All that is requiredis, there must be some material upon which the opinion is formed.Indeed, in this matter the court should show due deference to theopinion of the State,which in the present context means theexecutive. The executive is supposed to know the existingconditions in the society, drawn as it is from among therepresentatives of the people in Parliament/Legislature. It doesnot, however, mean that the opinion formed is beyond judicialscrutiny altogether. The scope and reach of judicial scrutiny inmatters within subjective satisfaction of the executive are welland extensively stated in Barium Chemicals v. Company LawBoard37 which need not be repeated here. Suffice it to mentionthat the said principles apply equally in the case of constitutionalprovision like Article 16(4), which expressly places the particularfact (inadequate representation) within the subjective judgmentof the State/executive.”

(emphasis supplied by us)

120.In Indra Sawhney (supra), it was observed that each situationcould not be visualised and must be left to appropriate authorities. Therecan be various tests for identifying backward classes. The Court can laydown only general guidelines. If the approach adopted by the State isfair and adequate, then the Court has no say in the matter. The Courtheld:

“780. Now, we may turn to the identification of “backward classof citizens.” How do you go about it? Where do you begin? Is themethod to vary from State to State, region to region, and fromrural to urban? What do you do in the case of religions wherecaste-system is not prevailing? What about other classes, groups,and communities which do not wear the label of caste? Are thepeople living adjacent to cease-fire line (in Jammu and Kashmir)or hilly or inaccessible regions to be surveyed and identified asbackward classes for the purpose of Article 16(4)? And so onand so forth are the many questions asked of us. We shall answerthem. But our answers will necessarily deal with generalities of

the situation and not with problems or issues of peripheral naturewhich are peculiar to particular State, district or region. Eachand every situation cannot be visualised and answered. That mustbe left to the appropriate authorities appointed to identify. We canlay down only general guidelines.

783. We do not mean to suggest — we may reiterate — that theprocedure indicated hereinabove is the only procedure or method/approach to be adopted. Indeed, there is no such thing as standardor model procedure/approach. It is for the authority (appointed toidentify) to adopt such approach and procedure as it thinksappropriate, and so long as the approach adopted by it is fair andadequate, the court has no say in the matter.The only object ofthe discussion in the preceding para is to emphasise that if aCommission/Authority begins its process of identification withcastes (among Hindus) and occupational groupings among others,it cannot by that reason alone be said to be constitutionally orlegally bad. We must also say that there is no rule of law that atest to be applied for identifying backward classes should be onlyone and/or uniform. In vast country like India, it is simply notpracticable. If the real object is to discover and locatebackwardness, and if such backwardness is found in caste, itcan be treated as backward; if it is found in any other group,section or class, they too can be treated as backward.

854. (b) Strictly speaking, appointment of Commission underArticle 340 is not necessary to identify the other backward classes.Article 340 does not say so. According to it, the Commission is tobe constituted ‘to investigate the conditions of socially andeducationally backward classes … and the difficulties under whichthey labour and to make recommendations as to the steps thatshould be taken by the Union or any State to remove suchdifficulties ….” The Government could have, even withoutappointing Commission, specified the OBCs, on the basis ofsuch material as it may have had before it (e.g., the lists preparedby various State Governments) and then appointed the Commissionto investigate their conditions and to make appropriaterecommendations. It is true that Mandal Commission wasconstituted “to determine the criteria for defining the socially andeducationally backward classes” and the Commission diddetermine the same. Even so, it is necessary to keep the aboveconstitutional position in mind, — more particularly in view of theveto given to State lists over the Mandal lists as explained in thepreceding sub-para. The criteria evolved by Mandal Commissionfor defining/identifying the Other Backward Classes cannot besaid to be irrelevant. Maybe there are certain errors in actualexercise of identification, in the nature of over-inclusion or under-inclusion, as the case may be. But in an exercise of such magnitudeand complexity, such errors are not uncommon. These errorscannot be made basis for rejecting either the relevance of thecriteria evolved by the Commission or the entire exercise ofidentification. It is one thing to say that these errors must be rectifiedby the Government of India by evolving an appropriate mechanismand an altogether different thing to say that on that account, theentire exercise becomes futile. There can never be perfectreport. In human affairs, such as this, perfection is only an ideal— not an attainable goal. More than forty years have passed by.So far, no reservations could be made in favour of OBCs for oneor the other reason in Central services though in many States,such reservations are in force. Reservations in favour of OBCsare in force in the States of Kerala, Tamil Nadu, Karnataka, AndhraPradesh, Maharashtra, Orissa, Bihar, Gujarat, Goa, Uttar Pradesh,Punjab, Haryana and Himachal Pradesh among others. In MadhyaPradesh, list of OBCs was prepared on the basis of the MahajanCommission Report but it appears to have been stayed by theHigh Court.”

(emphasis supplied by us)

It was also observed that strictly speaking, the appointment of aCommission is not necessary to identify the other backward classes.

121.Reliance has also been placed on Barium Chemicals v.Company Law Board AIR 1967 SC 295 to argue that the scope ofjudicial review is limited. It is not for the court to find sufficiency. It isnot open to the court to adjudge the accuracy of the material to conclude.

122.Dr. Rajeev Dhawan, learned Senior Counsel has relied uponTreatise on Constitutional Law (Fifth Edition) by Ronald D. Rotunda, inwhich it has been observed that law should be tested on traditional rational

Astandards and Court need not review seriously suspect classification.Following observations have been made:

“The Court, in an opinion by Justice White, found that the retirementclassification should be tested by general equal protectionprinciples, but that it did not violate the equal protection guarantee.Although the parties agreed that the law should be tested underthe traditional rational basis standard, Justice White’s opinionstressed that the federal judiciary is not to review seriously thoseclassifications that do not involve fundamental rights or suspectclassifications:

The Constitution presumes that, absent some reason to inferantipathy, even improvident decisions will eventually be rectifiedby the democratic process and that judicial intervention isgenerally unwarranted no matter how unwisely we may thinka political branch has acted. Thus, we will not overturn such astatute unless the varying treatment of different groups orpersons is so unrelated to the achievement of any combinationof legitimate purposes that we can only conclude that thelegislature’s actions were irrational.”

Applying the traditional rational standard, the position is worsenedto support the impugned G.O.

123.Reliance has also been placed on Jarnail Singh &Ors. v.Lachhmi Narain Gupta &Ors.,2018 (10) SCC 396, in which it wasobserved:

“23. This brings us to whether the judgment in M. Nagaraj v.Union of India, (2006) 8 SCC 212needs to be revisited on theother grounds that have been argued before us. Insofar as theState having to show quantifiable data as far as backwardness ofthe class is concerned, we are afraid that we must reject ShriShanti Bhushan’s argument. The reference to “class” is to theScheduled Castes and the Scheduled Tribes, and their inadequacyof representation in public employment. It is clear, therefore, thatNagaraj, (2006) 8 SCC 212, has, in unmistakable terms, statedthat the State has to collect quantifiable data showingbackwardness of the Scheduled Castes and the Scheduled Tribes.We are afraid that this portion of the judgment is directly contraryto the nine-Judge Bench in Indra Sawhney (1), 1922 Supp (3)

SCC 217. Jeevan Reddy, J., speaking for himself and three otherlearned Judges, had clearly held:

“[t]he test or requirement of social and educationalbackwardness cannot be applied to the Scheduled Castes andthe Scheduled Tribes, who indubitably fall within the expression“backward class of citizens”.” (See SCC p. 727, paras 796 to797.)

Equally, Dr Justice Thommen, in his conclusion at para 323(4),had held as follows: (SCC pp. 461-62)

“323. Summary

(4) Only such classes of citizens who are socially andeducationally backward are qualified to be identified asBackward Classes. To be accepted as Backward Classes forthe purpose of reservation under Article 15 or Article 16, theirbackwardness must have been either recognised by means ofa notification by the President under Article 341 or Article 342declaring them to be Scheduled Castes or Scheduled Tribes,or, on an objective consideration, identified by the State to besocially and educationally so backward by reason of identifiedprior discrimination and its continuing ill effects as to becomparable to the Scheduled Castes or the Scheduled Tribes.In the case of the Scheduled Castes or the Scheduled Tribes,these conditions are, in view of the notifications, presumed tobe satisfied.”

124.In Jarnail Singh (supra), this Court considered the decisionof M. Nagaraj (supra), which dealt with the promotional aspect. In thatcontext, the aforesaid observations were made by this Court. In theinstant case, the question involved is different. This case does not pertainto quantifying data for promotional avenues. The question to quantifydata showing the backwardness of scheduled castes or scheduled tribesis not germane. The decision has no application. The question involvedin the instant case is whether reservation for scheduled tribes ispermissible, but to what extent. The decision in Jarnail Singh (supra)concerning quantifying data for reservation and promotion does not applyto provisions of Para 5 of Schedule V of the Constitution of India.

A125.Dr. Rajeev Dhawan, learned Senior Counsel, has madeavailable the Annual Report of the Governor on the Administration ofScheduled Areas in Andhra Pradesh for the year 1999-2000, in whichquestion of the amendment and bringing fresh notification in place ofG.O. 275, Social Welfare (E) Dept. dated 5.11.1986 for reservation ofall teacher vacancies in the educational institutions within the ScheduledBAreas in favour of local Scheduled Tribes, was considered. It was resolvedthat as against the vacant posts reserved for the local tribals in theScheduled Areas, if the local tribals are not available, it may be filled bynon-local tribals. The relevant agenda item no.3 and resolution thereupon,which form part of the report sent to the President, is reproducedChereunder:

“Agenda Item: 3

The amendment and bringing fresh notification in placeof G.O.275, Social Welfare (E) Dept. dt. 5.11.1986 for reservationof all teacher vacancies in the Educational Institutions within theDScheduled Areas in favour of Local Scheduled Tribes.

The Commissioner of Tribal Welfare explain the above itemin detail:

Resolution:

It is decided that the vacant posts reserved for local tribals inscheduled areas. If the local tribals are not available, the postsmay be filled by non-local tribals.”

Thus, it is apparent that the Andhra Pradesh Tribes AdvisoryCouncil took the decision described above. It is pertinent to mention thatFthe G.O.275 dated 5.11.1986 was struck down by the High Court/Tribunal.The civil appeal filed in this Court was withdrawn. It is also apparentthat there were vacant posts reserved for the local tribals in the ScheduledAreas, as they could not be filled; thus, it was decided to fill the posts bylocal-non tribals.GThe reservation of 100 per cent posts was irrational and arbitrary

GThe reservation of 100 per cent posts was irrational and arbitraryand violative of Article 14 of the Constitution of India. On the one hand,local tribals were not available, and the posts were vacant, thereby adecision was taken to fill those posts by non-local tribals, and on theother hand, decision was taken to fill these posts by incumbents whowere residing in the area since 26.1.1950. The minutes of the AndhraH

Pradesh Tribes Advisory Council formed part of the report of theGovernor, which was sent to the President under Para Three of theFifth Schedule.

126.The Governor, as per Para 3 of Schedule V of Constitution,has to submit report to the President regarding the administration ofscheduled areas annually or whenever so required by the President.The report is required to keep track of the progress in the areas. Thereport is essential for deciding to make reservations and for its review.However, 100 percent reservation could not have been provided evenby amending Act of 1997, at the cost of the scheduled castes, backwardclasses, open category and the scheduled tribes who might have settledin the areas after 26[th] January 1950, as reservation had been providedonly to the tribal families residing in the district on or before 26[th] January1950. Thus, the action is discriminatory vis-à-vis not only concerningopen category but also to the disadvantageous sections of the society,totally vanishing the hopes of the incumbents of other classes. Thedecision to issue G.O. Ms No.3/2000 was taken not on verifiable data,but it was taken on the basis that there was chronic absenteeism of non-tribal teachers in the schools in scheduled areas.

127.By providing 100 percent reservation to the scheduled tribeshas deprived the scheduled castes and other backward classes also oftheir due representation. The concept of reservation is not proportionatebut adequate, as held in Indra Sawhney (supra). The action is thusunreasonable and arbitrary and violative of provisions of Articles 14, 15and 16 of the Constitution of India. It also impinges upon the right ofopen category and scheduled tribes who have settled in the area after26[th] January 1950. The total percentage of reservation provided forScheduled Tribes in the State is 6%. By providing 100 percent reservationin the scheduled areas, the rights of the tribals, who are not residents ofthe scheduled areas, shall also be adversely affected. As per Presidentialorder under Article 371-D, they cannot stake their claim in other areas.The posts in other areas are to be reduced by making 100% reservationin particular area.

128.The population in the scheduled areas not only includesscheduled tribes but also open category, scheduled castes, and otherscheduled tribes settled after 26.1.1950, and they are not covered in thenotification. In Khammam district, as noted by the High Court, out of 31mandals notified as scheduled areas, the population of the scheduled

Atribes is less than 50 percent, except in 9 mandals. In those 9 mandals,where there is more than 50%, the population of the scheduled tribes’ranges between 53 percent to 77 percent. The percentage of thescheduled tribes’ students is around 25 percent, and the remaining studentsbelong to other classes. Similarly, in West Godavari district, the populationof scheduled tribes as per the 1991 census was 39.31 percent, whereasBthe population of non-tribals was 60.69 percent.

129.Concerning Kothagudem, the High Court noted that manycollieries and industries are belonging to public and private sectorundertakings and large number of the influx of the people from scheduledcastes, scheduled tribes and backward classes had taken place to obtainCemployment.

130.No law mandates that only tribal teachers can teach in thescheduled areas; thus, the action defies the logic. Another reason givenis the phenomenal absenteeism of teachers in schools. That could nothave been ground for providing 100 percent reservation to the tribalDteachers in the areas. It is not the case that incumbents of other categoriesare not available in the areas. When district is unit for the employment,the ground applied for providing reservation for phenomenal absenteeismis irrelevant and could not have formed the basis for providing 100 percentreservation. The problem of absenteeism could have been taken care ofEby providing better facilities and other incentives.

131.The reason assigned that reservation was to cover impetusin the scheduled areas in the field of education and to strengtheneducational infrastructure is also equally bereft of substance. By deprivingopportunity to the others, it cannot be said that any impetus could haveFbeen given to the cause of students and effective education, and nowthat could have been strengthened. The provisions of 100 percentreservation are ignoring the merit. Thus, it would weaken the educationalinfrastructure and the merit and the standard of education imparted inthe schools. Educational development of students cannot be made onlyby particular class of teachers appointed by providing reservation,Gignoring merit in toto. The ideal approach would be that teachers areselected based on merit.

132.Depriving the opportunity of employment to other categoriescannot be said to be method of achieving social equilibrium. Apartfrom that, roster points are maintained for appointment by providing 100

percent reservation, there would be violation of the said provision also,and it would become unworkable and the action has an effect of takingaway the rights available to the tribals settled in the other non-scheduledareas. By providing 100 per cent reservation in the scheduled areas,their right to enjoy reservation to the extent it is available to them hadalso been taken away by uncalled for distribution of reservation.

133.There were no such extraordinary circumstances to providea 100 percent reservation in Scheduled Areas. It is an obnoxious ideathat tribals only should teach the tribals. When there are other localresidents, why they cannot teach is not understandable. The action defieslogic and is arbitrary. Merit cannot be denied in toto by providingreservations.

134.A reservation that is permissible by protective mode, bymaking it 100 percent would become discriminatory and impermissible.The opportunity of public employment cannot be denied unjustly to theincumbents, and it is not the prerogative of few. The citizens have equalrights, and the total exclusion of others by creating an opportunity forone class is not contemplated by the founding fathers of the Constitutionof India. Equality of opportunity and pursuit of choice under Article51-A cannot be deprived of unjustly and arbitrarily. As per the PresidentialOrder, the citizens of the locality and outsiders were entitled to 15 percentof employment in the district cadre in terms of clause 10 of Article 370(1)(d) of the Constitution. Thus, the G.O. does not classify but deals withreservations. It was contrary to the report sent to the President by theGovernor, which indicated even the posts which were reserved forscheduled tribes teachers, they were not available as such Tribes AdvisoryCouncil decided to fill them from other non-local tribals.

135.We find that G.O. Ms. No.3/2000 is wholly impermissibleand cannot be said to be legally permissible and constitutionally valid. Itcan be said that action is not only irrational, but it violates the rightsguaranteed under Part III of the Constitution and is not sustainable.

In Re: Question No.3: Whether the notification merelycontemplates classification underArticle 16(1) and notreservation underArticle 16(4)?

136.Question No.3 is whether notification No.3/2000 containsclassification under Article 16(1) and does not provide reservation underArticle 16(4) of the Constitution.

A137.Article 16(1) permit classification being facet of Article 14.Clause 4 of Article 16 is an instance of classification arising out of Clause1 of Article 16 of the Constitution. Articles 14, 16 (1) and 16(4) are allfacets of equality.In Indra Sawhney (supra), it was held that Article16(4) is not an exception to Article 16(1) but part of equality. ThisCourt observed that in certain situations to treat unequal persons equally,Bprovide them equality:

“741. In M.R. Balaji v. State of Mysore, 1963 Supp 1 SCR 439,it was held — “there is no doubt that Article 15(4) has to be readas proviso or an exception to Articles 15(1) and 29(2)”. It wasobserved that Article 15(4) was inserted by the First Amendmentin the light of the decision in State of Madras v.SmtChampakamDorairajan, 1951 SCR 525, with view toremove the defect pointed out by this court namely, the absenceof provision in Article 15 corresponding to clause (4) of Article16. Following Balaji it was held by another Constitution Bench(by majority) in T. Devadasan v. Union of India, (1964) 4 SCR680 — “further this Court has already held that clause (4) ofArticle 16 is by way of proviso or an exception to clause (1)”.Subba Rao, J, however, opined in his dissenting opinion that Article16(4) is not an exception to Article 16(1) but that it is only anemphatic way of stating the principle inherent in the main provisionitself. Be that as it may, since the decision in Devadasan, it wasassumed by this Court that Article 16(4) is an exception to Article16(1). This view, however, received severe setback from themajority decision in State of Kerala v. N.M. Thomas (1976) 2SCC 310. Though the minority (H.R. Khanna and A.C. Gupta,JJ) stuck to the view that Article 16(4) is an exception, the majority(Ray, CJ, Mathew, Krishna Iyer and Fazal Ali, JJ) held that Article16(4) is not an exception to Article 16(1) but that it was merely anemphatic way of stating principle implicit in Article 16(1). (Beg,J took slightly different view which it is not necessary to mentionhere.) The said four learned Judges — whose views have beenreferred to in para 713 — held that Article 16(1) being facet ofthe doctrine of equality enshrined in Article 14 permits reasonableclassification just as Article 14 does. In our respectful opinion, theview taken by the majority in Thomas is the correct one. We toobelieve that Article 16(1) does permit reasonable classification

for ensuring attainment of the equality of opportunity assured byit. For assuring equality of opportunity, it may well be necessaryin certain situations to treat unequally situated persons unequally.Not doing so, would perpetuate and accentuate inequality. Article16(4) is an instance of such classification, put in to place the matterbeyond controversy. The “backward class of citizens” areclassified as separate category deserving special treatment inthe nature of reservation of appointments/posts in the services ofthe State. Accordingly, we hold that clause (4) ofArticle 16 is notexception to clause (1) of Article 16. It is an instance ofclassification implicit in and permitted by clause (1). The speechof Dr Ambedkar during the debate on draft Article 10(3)[corresponding to Article 16(4)] in the Constituent Assembly —referred to in para 693 — shows that substantial number ofmembers of the Constituent Assembly insisted upon a“provision (being) made for the entry of certain communitieswhich have so far been outside the administration”, and that draftclause (3) was put in in recognition and acceptance of the saiddemand. It is provision which must be read along with and inharmony with clause (1). Indeed, even without clause (4), it wouldhave been permissible for the State to have evolved such aclassification and made provision for reservation of appointments/posts in their favour. Clause (4) merely puts the matter beyondany doubt in specific terms.742. Regarding the view expressed in Balaji (supra) andDevadasan (supra), it must be remembered that at that time itwas not yet recognised by this Court that Article 16(1) being afacet of Article 14 does implicitly permit classification. Once thisfeature was recognised the theory of clause (4) being an exceptionto clause (1) became untenable. It had to be accepted that clause(4) is an instance of classification inherent in clause (1). Now, justas Article 16(1) is facet or an elaboration of the principleunderlying Article 14, clause (2) of Article 16 is also an elaborationof facet of clause (1). If clause (4) is an exception to clause (1)then it is equally an exception to clause (2). Question then arises,in what respect if clause (4) an exception to clause (2), if ‘class’does not means ‘caste’. Neither clause (1) nor clause (2) speakof class. Does the contention mean that clause (1) does not permit

classification and therefore clause (4) is an exception to it. Thus,from any point of view, the contention of the petitioners has nomerit.”

(emphasis supplied by us)

138.In Indra Sawhney (supra), the Court held that Article 16(4)Baims at group backwardness, thus:

“792. In our opinion, it is not question of permissibility ordesirability of such test but one of proper and more appropriateidentification of class — backward class. The very conceptof class denotes number of persons having certain commontraits which distinguish them from the others. In backward classunder clause (4) of Article 16, if the connecting link is the socialbackwardness, it should broadly be the same in given class. Ifsome of the members are far too advanced socially (which in thecontext, necessarily means economically and, may also meaneducationally) the connecting thread between them and theremaining class snaps. They would be misfits in the class. Afterexcluding them alone, would the class be compact class. Infact, such exclusion benefits the truly backward. Difficulty,however, really lies in drawing the line — how and where to drawthe line? For, while drawing the line, it should be ensured that itdoes not result in taking away with one hand what is given by theother. The basis of exclusion should not merely be economic,unless, of course, the economic advancement is so high that itnecessarily means social advancement. Let us illustrate the point.A member of backward class, say member of carpenter caste,goes to Middle East and works there as carpenter. If you takehis annual income in rupees, it would be fairly high from the Indianstandard. Is he to be excluded from the Backward Class? Are hischildren in India to be deprived of the benefit of Article 16(4)?Situation may, however, be different, if he rises so higheconomically as to become — say factory owner himself. Insuch situation, his social status also rises. He himself would bein position to provide employment to others. In such case, hisincome is merely measure of his social status. Even otherwisethere are several practical difficulties too in imposing an incomeceiling. For example, annual income of Rs 36,000 may not countfor much in city like Bombay, Delhi or Calcutta whereas it may

be handsome income in rural India anywhere. The line to bedrawn must be realistic one. Another question would be, shouldsuch line be uniform for the entire country or given State orshould it differ from rural to urban areas and so on. Further, incomefrom agriculture may be difficult to assess and, therefore, in thecase of agriculturists, the line may have to be drawn with referenceto the extent of holding. While the income of person can betaken as measure of his social advancement, the limit to beprescribed should not be such as to result in taking away with onehand what is given with the other. The income limit must be suchas to mean and signify social advancement.At the same time, itmust be recognised that there are certain positions, the occupantsof which can be treated as socially advanced without any furtherenquiry. For example, if member of designated backward classbecomes member of IAS or IPS or any otherAll India Service,his status is society (social status) rises; he is no longer sociallydisadvantaged. His children get full opportunity to realise theirpotential. They are in no way handicapped in the race of life. Hissalary is also such that he is above want. It is but logical that insuch situation, his children are not given the benefit of reservation.For by giving them the benefit of reservation, otherdisadvantaged members of that backward class may bedeprived of that benefit. It is then argued for the respondentsthat ‘one swallow doesn’t make the summer’, and that merelybecause few members of caste or class become sociallyadvanced, the class/caste as such does not cease to be backward.It is pointed out that clause (4) of Article 16 aims at groupbackwardness and not individual backwardness. While we agreethat clause (4) aims at group backwardness, we feel that exclusionof such socially advanced members will make the ‘class’ trulybackward class and would more appropriately serve the purposeand object of clause (4). (This discussion is confined to OtherBackward Classes only and has no relevance in the case ofScheduled Tribes and Scheduled Castes).”

(emphasis supplied by us)

(a). Concerning the interpretation of provisions in Articles 15(4)and 16(4), in Indra Sawhney (supra), this Court held that:

“787. It is true that no decision earlier to it specifically said so, yetsuch an impression gained currency and it is that impression whichfinds expression in the above observation. In our respectful opinion,however, the said assumption has no basis. Clause (4) of Article16 does not contain the qualifying words “socially andeducationally” as does clause (4) of Article 15. It may beremembered that Article 340 (which has remained unamended)does employ the expression ‘socially and educationally backwardclasses’ and yet that expression does not find place in Article16(4). The reason is obvious: “backward class of citizens” in Article16(4) takes in Scheduled Tribes, Scheduled Castes and all otherbackward classes of citizens including the socially and educationallybackward classes. Thus, certain classes which may not qualifyfor Article 15(4) may qualify for Article 16(4). They may notqualify for Article 15(4) but they may qualify as backward classof citizens for the purposes of Article 16(4). It is equally relevantto notice that Article 340 does not expressly refer to services orto reservations in services under the State, though it may be thatthe Commission appointed thereunder may recommend reservationin appointments/posts in the services of the State as one of thesteps for removing the difficulties under which SEBCs arelabouring and for improving their conditions. Thus, SEBCs referredto in Article 340 is only of the categories for whom Article 16(4)was enacted: Article 16(4) applies to much larger class than theone contemplated by Article 340. It would, thus, be not correct tosay that ‘backward class of citizens’inArticle 16(4) are the sameas the socially and educationally backward classes inArticle 15(4).Saying so would mean and imply reading limitation into beneficialprovision like Article 16(4). Moreover, when speaking ofreservation in appointments/posts in the State services — whichmay mean, at any level whatsoever — insisting upon educationalbackwardness may not be quite appropriate.”

(emphasis supplied by us)

(b). Article 16(4) applies to much larger classes than iscontemplated by Article 340. Thus, it would not be correct to say thatthe backward class of citizens under Article 16(4) is the same as providedas socially and backward classes in Article 15(4). What is backwardcommunity, has been considered in Indra Sawhney (supra) thus:

“693. Ultimately Dr. B.R. Ambedkar, the Chairman of the DraftingCommittee, got up to clarify the matter. His speech, which put anend to all discussion and led to adopting of draft Article 10(3), isworth quoting in extenso, since it throws light on several questionsrelevant herein:

“ … [T]here are three points of view which it is necessary forus to reconcile if we are to produce workable propositionwhich will be accepted by all. Of the three points of view, thefirst is that there shall be equality of opportunity for all citizens.It is the desire of many Members of this House that everyindividual who is qualified for particular post should be freeto apply for that post, to sit for examinations and to have hisqualifications tested so as to determine whether he is fit forthe post or not and that there ought to be no limitations, thereought to be no hindrance in the operation of this principle ofequality of opportunity. Another view mostly shared by sectionof the House is that, if this principle is to be operative — and itought to be operative in their judgment to its fullest extent —there ought to be no reservations of any sort for any class orcommunity at all, that all citizens, if they are qualified, shouldbe placed on the same footing of equality so far as the publicservices are concerned. That is the second point of view wehave. Then we have quite massive opinion which insists that,although theoretically it is good to have the principle that thereshall be equality of opportunity, there must at the same time bea provision made for the entry of certain communities whichhave so far been outside the administration. As I said, theDrafting Committee had to produce formula which wouldreconcile these three points of view, firstly, that there shall beequality of opportunity, secondly that there shall be reservationsin favour of certain communities which have not so far had a‘proper look-in’ so to say into the administration. If HonourableMembers will bear these facts in mind — the three principleswe had to reconcile, — they will see that no better formulacould be produced than the one that is embodied in sub-clause(3) of Article 10 of the Constitution; …. It is generic principle.At the same time, as I said, we had to reconcile this formulawith the demand made by certain communities that theadministration which has now — for historical reasons — been

controlled by one community or few communities, thatsituation should disappear and that the others also must havean opportunity of getting into the public services. Supposing,for instance, we were to concede in full the demand of thosecommunities who have not been so far employed in the publicservice to the fullest extent, what would really happen is, weshall be completely destroying the first proposition upon whichwe are all agreed, namely, that there shall be an equality ofopportunity. Let me give an illustration. Supposing, for instance,reservations were made for community or collection ofcommunities, the total of which came to something like 70%of the total posts under the State and only 30% are retained asthe unreserved. Could anybody say that the reservation of 30%as open to general competition would be satisfactory from thepoint of view of giving effect to the first principle, namely, thatthere shall be equality of opportunity? It cannot be in myjudgment. Therefore the seats to be reserved, if the reservationis to be consistent with sub-clause (1) ofArticle 10, must beconfined to minority of seats. It is then only that the firstprinciple could find its place in the Constitution and be effectivein operation. If Honourable Members understand this positionthat we have to safeguard two things, namely, the principle ofequality of opportunity and at the same time satisfy the demandof communities which have not had so far representation inthe State, then, I am sure they will agree that unless you usesome such qualifying phrase as ‘backward’ the exception madein favour of reservation will ultimately eat up the rule altogether.Nothing of the rule will remain. That I think if I may say so, isthe justification why the Drafting Committee undertook on itsown shoulders the responsibility of introducing the word‘backward’ which, I admit, did not originally find place in thefundamental right in the way in which it was passed by thisAssembly ….

Somebody asked me: ‘What is backward community’?Well, I think anyone who reads the language of the draft itselfwill find that we have left it to be determined by each localGovernment. backward community is community which isbackward in the opinion of the Government.” (C.A.D., Vol. 7,p. 701)”

(emphasis supplied by us)

(c). In Indra Sawhney (supra), the Court held that once thereservation has been provided to other backward classes, scheduledcastes and scheduled tribes within the purview of Article 16(4), anyfurther exemption, concession or preference to such class of personscan be extended only under clause (4) of Article 16. Article 16(4) isexhaustive of the special provisions that can be made in favour of abackward class of citizens, that is, other backward classes, scheduledcastes, and scheduled tribes. Under Article 16(1), if the State wants tomake any reservation on whatever point, to address specific situation,Article 16(4) acts as damper as there would be whittling down of thevacancies for free competition, and that is not reasonable thing to do.In Indra Sawhney (supra), the Court held:“743. x x x In our opinion, therefore, where the State finds itnecessary — for the purpose of giving full effect to the provisionof reservation to provide certain exemptions, concessions orpreferences to members of backward classes, it can extend thesame under clause (4) itself. In other words, all supplemental andancillary provisions to ensure full availment of provisions forreservation can be provided as part of concept of reservationitself. Similarly, in given situation, the State may think that in thecase of particular backward class it is not necessary to providereservation of appointments/posts and that it would be sufficientif certain preference or concession is provided in their favour.This can be done under clause (4) itself. In this sense, clause (4)ofArticle 16 is exhaustive of the special provisions that can bemade in favour of “the backward class of citizens”. BackwardClasses having been classified by the Constitution itself as classdeserving special treatment and the Constitution having itselfspecified the nature of special treatment, it should be presumedthat no further classification or special treatment is permissible intheir favour apart from or outside of clause (4) of Article 16.”

(emphasis supplied by us)

744. The aspect next to be considered is whether clause (4) isexhaustive of the very concept of reservations? In other words,the question is whether any reservations can be provided outsideclause (4) i.e., under clause (1) of Article 16. There are two viewson this aspect. On fuller consideration of the matter, we are ofthe opinion that clause (4) is not, and cannot be held to be,

Aexhaustive of the concept of reservations; it is exhaustive ofreservations in favour of backward classes alone. Merely because,one form of classification is stated as specific clause, it does notfollow that the very concept and power of classification implicit inclause (1) is exhausted thereby. To say so would not be correct inprinciple. But, at the same time, one thing is clear. It is in veryBexceptional situations, — and not for all and sundry reasons —that any further reservations, of whatever kind, should be providedunder clause (1). In such cases, the State has to satisfy, if calledupon, that making such provision was necessary (in publicinterest) to redress specific situation. The very presence ofCclause (4) should act as damper upon the propensity to createfurther classes deserving special treatment. The reason for sayingso is very simple. If reservations are made both under clause (4)as well as under clause (1), the vacancies available for freecompetition as well as reserved categories would be acorrespondingly whittled down and that is not reasonable thingDto do.

859. We may summarise our answers to the various questionsdealt with and answered hereinabove:

(1) x x x

(2) (a) Clause (4) of Article 16 is not an exception to clause (1).It is an instance and an illustration of the classification inherent inclause (1). (Paras 741-742)

(b) Article 16(4) is exhaustive of the subject of reservation infavour of backward class of citizens, as explained in this judgment.(Para 743)

(c) Reservations can also be provided under clause (1) of Article16. It is not confined to extending of preferences, concessions orexemptions alone. These reservations, if any, made under clause(1) have to be so adjusted and implemented as not to exceed thelevel of representation prescribed for ‘backward class of citizens’— as explained in this Judgment. (Para 745)

860. For the sake of ready reference, we also record our answersto questions as framed by the counsel for the parties and set outin para 681. Our answers question-wise are:

(1)Article 16(4) is not an exception to Article 16(1). It is aninstance of classification inherent inArticle 16(1).Article 16(4)is exhaustive of the subject of reservation in favour ofbackward classes, though it may not be exhaustive of thevery concept of reservation. Reservations for other classescan be provided under clause (1) ofArticle 16.

(2)The expression ‘backward class’in Article 16(4) takes in‘Other Backward Classes’, SCs, STs and may be some otherbackward classes as well. The accent in Article 16(4) is uponsocial backwardness. Social backwardness leads toeducational backwardness and economic backwardness. Theyare mutually contributory to each other and are intertwinedwith low occupations in the Indian society. caste can beand quite often is social class in India. Economic criterioncannot be the sole basis for determining the backward classof citizens contemplated by Article 16(4). The weakersections referred to in Article 46 do include SEBCs referredto in Article 340 and covered by Article 16(4).

(7) No special standard of judicial scrutiny can be predicated inmatters arising under Article 16(4). It is not possible ornecessary to say more than this under this question.”

139.In the instant case, it is not in dispute that the district is alocal area and unit for the appointment of teachers and reservation isprovided at the district level and as per the Presidential Order underArticle 371D of the Constitution, incumbent of one district cannot stakeclaim outside the district for an appointment. The reservations forscheduled tribes are covered within the ken of Article 16(4). Thus, nofurther preference or classification could have been made under Article16(1) of the Constitution of India in favour of scheduled tribes as Article16(4) is exhaustive of the special provisions that can be made in favourof scheduled castes, scheduled tribes, and other backward classes.Reservation for the other classes can be provided under Article 16(1)and not to scheduled tribes to whom the reservation has been providedunder Article 16(4). Thus, as argued on behalf of respondents, it cannotbe said to be case of classification made under Article 16(1) of theConstitution of India. It is case of tinkering with the percentage ofreservation permissible as per the dictum of Indra Sawhney (supra).

BCD

AOther incumbents who are in the reserved classes such as scheduledcastes and other backward classes and even Scheduled Tribes who havesettled after 26.1.1950 beside incumbents of open category, were deprivedof the right to stake claim to obtain public employment as against theposts in question. In the background of the discussion made in the earlierpart of the judgment, it is crystal clear that the order passed providingB100% reservation is arbitrary, illegal, impermissible, and unconstitutional.

140.The 100 percent reservation has been provided. It cannot besaid to be case of classification that has been made under Article16(1). Assuming, for the sake of argument, it is to be case ofclassification under Article 16(1), it would have been discriminatory andCgrossly arbitrary without rationale and violative of constitutional mandate.

141. The incumbents of various categories have the right to stakea claim for the employment of which they have been deprived. Thus, itis not matter of classification. The reservation under Article 16(4) wasmade. By way of 100% reservation, the employment to others wasDillegally deprived and they have no chance of employment as against thepost of teachers elsewhere because of the order under Article 371D inwhich district/zone is unit. It is clear case of tinkering with reservation.

In Re: Question No.4: Whether the conditions of eligibilitythat is the origin and cut-off date to avail the benefit of reservationEin the notification is reasonable:

142.It has been provided in the notification that the local scheduledtribe’s candidates have been defined to be scheduled tribes notified asunder Article 342 of the Constitution of India, if the candidates ofscheduled tribes themselves or their parents have been continuouslyFresiding in the scheduled areas of the district in which they are residingfrom the date i.e., 26[th] January 1950.

143.The condition of continuously residing in the district is exfacie arbitrary.Article 15(1) of the Constitution provides that State shallnot discriminate inter alia on the ground of place of birth, however,Gunder Article 15(4), it is provided that reservation can be made in favourof citizens of backward classes i.e.Scheduled Castes and ScheduledTribes and special provision can be carved out for their advancement. Itis also open to prescribe for conditions of eligibility on the ground ofresidence in particular area as well as on the educational requirementsbut that cannot be fixed arbitrarily and irrationally.H

144.In the Presidential Order called the Andhra Pradesh PublicEmployment (Organisation of Local Cadres and Regulation of DirectRecruitment) Order, 1975, (for short, “1975 Order”) “Local Candidate”has been defined in para 7 thus:

“7. Local Candidate:- (1) candidate for direct recruitment toany post shall be regarded as local candidate in relation to alocal area.

(a) in cases where minimum educational qualification hasbeen prescribed for recruitment to the post.

(i) if he has studied in an educational institution or educationalinstitutions in such local area for period of not less thanfour consecutive academic years ending with the academicyear in which he appeared or, as the case may be, firstappeared for the relevant qualifying examination; or

(ii) where during the whole or any part of the fourconsecutive academic years ending with the academic yearin which he appeared or as the case may be, first appearedfor the relevant qualifying examination he has not studiedin any educational institution, if he has resided in that localarea for period of not less than four years immediatelypreceding the date of commencement of the qualifyingexamination in which he appeared or as the case may be,first appeared.

(b) In cases where no minimum educational qualification hasbeen prescribed for recruitment to the post, if he has resided inthat local area for period of not less than four yearsimmediately preceding the date on which the post is notifiedfor recruitment.

(2) candidate for direct recruitment to any post who is notregarded as local candidate under sub paragraph (1) in relationto any local area shall.

(a) in cases where minimum educational qualification hasbeen prescribed for recruitment to the post.

(i) if he has studied in educational institutions in the Statefor period of not less than seven consecutive academicyears ending with academic year in which he appeared oras the case may be, first appeared for the relevant qualifyingexamination, be regarded as local candidate in relation to

(1) Such local area where he has studied for the maximumperiod out of the said period of seven years; or

(2) where the periods of his study in two or more localareas are equal, such local areas where he has studiedlast in such equal periods;

(ii) if during the whole or any part of the seven consecutiveacademic years ending with the academic years in which heappeared or as the case may be first appeared for the relevantqualifying examination, he has not studied in the educationalinstitutions in any local area, but has resided in the State duringthe whole of the said period of seven years, be regarded as alocal candidate in relation to

(1) such local area where he has resided for maximumperiod out of the said period of seven years: or

(2) where the periods of his residence in two or morelocal areas are equal, such local areas where he hasresided last in such equal periods;

(b) In cases where no minimum educational qualification hasbeen prescribed for recruitment to the post, if he has resided inthe State for period of not less than seven years immediatelypreceding the date on which the post is notified for recruitment,be regarded as local candidate in relation to

(i) such local area where he has resided for the maximumperiod out of the said period of seven years; or

(ii) where the periods of his residence in two or morelocal areas are equal such local area where he hasresided last in such equal periods.”

145.Para 7(1) of the 1975 Order provided that candidate shallbe regarded as local candidate in relation to local area in cases where

minimum qualification is prescribed for recruitment to the post i.e. aperson who hasstudied in such local area for period of not less thanfour consecutive academic years orif he has resided in that local areafor period of not less than four years immediately preceding the dateof commencement of qualifying examination in which he appeared.

146.Para 7(2) of the 1975 Order provides that candidate for directrecruitment to any post,who is not regarded as local candidate in relationto any local area, shall study for 7 consecutive academic years where aminimum educational qualification has been prescribed for recruitmentto the post. Condition of Study for less than 7 consecutive academicyears is also provided for resident for period of seven years withcertain stipulation in para 7(2)(A)(2)(ii).

147.The G.O. in question requires candidate or the parents toreside in the area continuously w.e.f. 26.1.1950 to date. There is norhyme or reason to require continuous residence for last 50 years ormore. It overlooks the rights of various other persons who might havesettled decades together in the area in question. It is discriminatory vis-à-vis to the scheduled tribes also settled in the area and it has no purposeto be achieved and imposes restriction which was not even provided inthe Presidential Order issued under Article 371D of the ConstitutionofIndia with respect to residential or educational requirements. Thus, itdoes not lay down valid conditions. The same is fixed in highlyunreasonable and arbitrary manner and limits zone of consideration tominiscule where an opportunity for public employment has to be affordedto all concerned with reasonable rights.

148.Public employment envisages opportunity to all, who havebeen provided reservation is by way of exception to do the compensatoryjobs. The condition above deprives the scheduled tribes who are permanentresidents of the areas and have settled after the said cut-off date. Thus,the classification created is illegal, unreasonable, and arbitrary. Makingsuch provision that person should be resident on or before 26[th]January 1950 to date is discriminatory and has the effect of exceedingthe purpose of providing the reservation. It defeats the rights of othersimilar tribes who might have settled after 26[th] January 1950 in the areataken care of in the Presidential Order under Article 371-D. It is violativeof Articles 14, 15(1) and 16 of the Constitution and has no rationale withthe purpose sought to be achieved. It creates class within class, and

Athe classification made failed to qualify the parameters of Articles 14, 15and 16 of the Constitution of India.

REVISION OF LISTS

149.Article 341(1) provides for the inclusion of castes, races, ortribes to be Scheduled Castes in relation to any State. Article 341(2)Bempowers the Parliament to include or exclude from the list of ScheduledCastes any caste, race or tribe. Article 341(2) is extracted hereunder:

“341.— (1)**

(2) Parliament may by law include in or exclude from the list ofCScheduled Castes specified in notification issued under clause(1) any caste, race or tribe or part of or group within any caste,race or tribe, but save as aforesaid notification issued under thesaid clause shall not be varied by any subsequent notification.”

150. Identical provisions in relation to the inclusion of ScheduledDTribes are provided in Article 342(1), and the Parliament’s power toamend is provided in Article 342(2). Similar provisions are containedwith respect to socially and educationally backward classes in Article342A. Scheduled Area is defined in Para 6 of Schedule V, and the powerto amend is provided in Para 7 of Schedule V. It is also provided in Para3 of the Schedule V that the Governor has to send report to the PresidentEregarding the administration of Scheduled Areas. The objective is tokeep track of the progress in the areas. The report is essential for decidingto make reservations and for its review. Oversightis required to be keptby the Constitutional authorities, and the Parliament has been given theright to amend the list and the Schedule.F151.In Indra Sawhney (supra), it was held that the State Lists

F151.In Indra Sawhney (supra), it was held that the State Listsadopted to provide reservations by the Government are not meant to besacrosanct and unalterable. There may be cases where Commissionsappointed by the State may have, in their reports, recommendedmodification of such lists by deletion or addition of certain castes,communities, and classes. Where such reports are available, the StateGGovernment is bound to act on that basis with reasonable promptitude.If the State Government effects any modification or alteration by wayof deletions or additions, the same shall be intimated to the Governmentof India forthwith. This Court opined concerning the modifications andrectification of such list thus:

“853. At the same time, we think it necessary to make thefollowing clarification: It is true that the Government of India hasadopted the State lists obtaining as on August 13, 1990 for its ownpurposes but that does not mean that those lists are meant to besacrosanct and unalterable. There may be cases wherecommissions appointed by the State Government may have, intheir reports, recommended modification of such lists by deletionor addition of certain castes, communities and classes. Whereversuch commission reports are available, the State Government isbound to look into them and take action on that basis with reasonablepromptitude. If the State Government effects any modification oralteration by way of deletions or additions, the same shall beintimated to the Government of India forthwith which shall takeappropriate action on that basis and make necessary changes inits own list relating to that State. Further, it shall be equally opento, indeed the duty of, the Government of India — since it hasadopted the existing States lists — to look into the reports of suchcommission, if any, and pass its own orders, independent of anyaction by the State Government, thereon with reasonablepromptitude by way of modification or alternation. It shall be opento the Government of India to make such modification/alterationin the lists adopted by way of additions or deletions, as it thinksappropriate on the basis of the Reports of the Commission(s).This direction, in our opinion, safeguards against perpetuation ofany errors in the State lists and ensures rectification of those listswith reasonable promptitude on the basis of the Reports of theCommissions already submitted, if any. This course may be adoptedde hors the reference to or advice of the permanent mechanism(by way of Commission) which we have directed to be created atboth Central and State level and with respect to which we havemade appropriate directions elsewhere.”

152.The Court in Rakesh Kumar (supra) emphasised need ofperiodical review and held:

“37. It is well-accepted premise in our legal system that ideassuch as “substantive equality” and “distributive justice” are at theheart of our understanding of the guarantee of “equal protectionbefore the law”. The State can treat unequals differently with theobjective of creating level-playing field in the social, economic

Aand political spheres. The question is whether “reasonableclassification” has been made on the basis of intelligible differentiaand whether the same criteria bears direct nexus with legitimategovernmental objective. When examining the validity of affirmativeaction measures, the enquiry should be governed by the standardof proportionality rather than the standard of “strict scrutiny”. OfBcourse, these affirmative action measures should be periodicallyreviewed and various measures modified or adapted from time totime in keeping with the changing social and economic conditions.Reservation of seats in panchayats is one such affirmative actionmeasure enabled by Part IX of the Constitution.”

(emphasis supplied by us)

153.Now there is cry within the reserved classes. By now,there are affluents and socially and economically advanced classes withinScheduled Castes and Scheduled Tribes. There is voice by deprivedpersons of social upliftment of some of the Scheduled Castes/Tribes, butDthey still do not permit benefits to trickle down to the needy. Thus, thereis struggle within, as to worthiness for entitlement within reservedclasses of scheduled castes and scheduled tribes and other backwardclasses.

In our opinion, it was rightly urged by Dr. Rajeev Dhawan thatEthe Government is required to revise the lists. It can be done presentlywithout disturbing the percentage of reservation so that benefits trickledown to the needy and are not usurped by those classes who have comeup after obtaining the benefits for the last 70 years or after their inclusionin the list. The Government is duty-bound to undertake such an exerciseas observed in Indra Sawhney (supra) and as constitutionally envisaged.FThe Government to take appropriate steps in this regard.

154.We answer the questions referred to us thus:

Question No.1:The Governor in the exercise of powers underPara 5(1), Fifth Schedule of the Constitution, can exercise the powersconcerning any particular Act of the Parliament or the legislature of theGState. The Governor can direct that such law shall not apply to theScheduled Areas or any part thereof. The Governor is empowered toapply such law to the Scheduled Area or any part thereof in the Statesubject to such exceptions and modifications as he may specify in thenotification and can also issue 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 ofParliament or the Legislature of the State, shall not apply to ScheduledArea or apply the same with exceptions and modifications. The Governorcan make provision within the parameters of amendment/modificationofthe Act of Parliament or State legislature. The power to make newlaws/regulations, is provided in Para 5(2), Fifth Schedule of theConstitution for the purpose mentioned therein, not under Para 5(1) ofthe 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 subordinatelegislation, it is with respect to an Act enacted in the sovereign functionby the Parliament or legislature of the State which can be dealt with.

Question No.1(c):The Governor’spower under Para 5(1) of theFifth Schedule to the Constitution is subject to some restrictions, whichhave to be observed by the Parliament or the legislature of the Statewhile making law and cannot override the fundamental rights guaranteedunder Part III of the Constitution.

Question No.1(d):In exercise of power under Para 5(1) of theFifth Schedule to the Constitution of India, the Governor cannot overridethe notification issued by the President in the exercise of powers underArticle 371D. The power has to be exercised harmoniously with suchan order issued under Article 371D, not in conflict thereof.

Question No.2: G.O.Ms. No.3/2000 providing for 100 per centreservation is not permissible under the Constitution, the outer limit is 50per cent as specified in Indra Sawhney (supra).

Question No.3:The notification in question cannot be treated asclassification made under Article 16(1). Once the reservation has beenprovided to Scheduled Tribes under Article 16(4), no such power can beexercised under Article 16(1). The notification is violative of Articles 14and 16(4) of the Constitution of India.

Question No.4: The conditions of eligibility in the notificationwith cut-off date, i.e., 26.1.1950, to avail the benefits of reservation, isunreasonable and arbitrary one.

RELIEF:

As sequel to the quashing of G.O. Ms. No.3 of 2000, theappointments made in excess of the permissible reservation cannot

Asurvive and should be set aside. However, on behalf of State and otherrespondents, it was urged that appointments may not be set aside. In thepeculiar circumstances, the incumbents, who have been appointed, cannotbe said to be at fault and they belong to Scheduled Tribes.

We cannot ignore the fact that similar G.O. was issued by theBerstwhile State Government of Andhra Pradesh in the year 1986, whichwas quashed by the State Administrative Tribunal, against which an appealwas preferred in this Court, which was dismissed as withdrawn in theyear 1998. After withdrawal of the appeal from this Court, it was expectedof the erstwhile State of Andhra Pradesh not to resort to such illegalityof providing 100% reservation once again. But instead, it issued G.O.CMs. No.3 of 2000, which was equally impermissible, even if the A.P.Regulation of Reservation and Appointment to Public Services Act, 1997would have been amended, in that event also providing reservation beyond50% was not permissible. It is rightly apprehended by appellants that theState may again by way of mis-adventure, resort to similar illegal exerciseDas was done earlier. It was least expected from the functionary likeGovernment to act in aforesaid manner as they were bound by the dictumlaid down by this Court in Indra Sawhney (supra) and other decisionsholding that the limit of reservation not to exceed 50%. There was norhyme or reason with the State Government to resort to 100% reservation.It is unfortunate that illegal exercise done in 1986 was sought to beEprotected by yet another unconstitutional attempt by issuing G.O.Ms.No.3 of 2000 with retrospective effect of 1986, and now after that 20years have passed. In the peculiar circumstance, we save theappointments conditionally that the reorganised States i.e. the States ofAndhra Pradesh and Telangana not to attempt similar exercise in theFfuture. If they do so and exceed the limit of reservation, there shall notbe any saving of the appointments made, w.e.f. 1986 till date. We directthe respondents-States not to exceed the limits of reservation in future.Ordered accordingly.

Resultantly, we allow the appeals, and save the appointments madeGso far conditionally with the aforesaid riders. The cost of appeal isquantified at Rupees Five Lakhs and to be shared equally by the Statesof Andhra Pradesh and Telangana.

Ankit GyanH