2020 Supreme(SC) 316

SUPREME COURT OF INDIA
Arun Mishra, Indira Banerjee, Vineet Saran, M.R. Shah, Aniruddha Bose, JJ.
CHEBROLU LEELA PRASAD RAO & ORS. – APPELLANTS
VERSUS
STATE OF A.P. & ORS. – RESPONDENTS
CIVIL APPEAL NO.3609 OF 2002 WITH CIVIL APPEAL NO.7040 OF 2002
Decided On : 22-04-2020

IMPORTANT POINTS
(1) Governor in exercise of power conferred by Para 5(1) of Fifth Schedule of Constitution, cannot provide 100% reservation.
(2) Power of modification cannot extend to rewriting entire statute.
(3) Doctrine of equity would not be attracted when benefits were conferred on the basis of illegality.
(4) Non-obstante clause in Article 371D will not annul non-obstante clause in Para 5 of Fifth Schedule.

Headnote:

(A) Constitution of India – Para 5(1), Fifth Schedule – Powers of Governor – It is not the formulation of a new law which is contemplated under Para 5(1) of Schedule V – No new law can be formulated while exercising power under Para 5(1) of Schedule V – Power of modification cannot extend to rewriting entire statute – Power cannot be used to supplant law which is applicable – Law has to be applied only with exceptions or modifications – It cannot totally supersede existing law which is wholly opposed to idea of applicable law as in that case it would tantamount to new law and not modification or exception or creation of exceptions or modifications to applicable law – Object and substance of law applicable cannot be changed within purview of Para 5(1), though applicability of applicable law can be excluded – In case Governor decides law to remain applicable, he has power only to create exceptions and to modify the same, not to create a new one juxtaposed to same applicable law. (Para 49)

(B) Constitution of India – Para 5(1), Fifth Schedule – Powers of Governor – Governor in exercise of powers under Para 5(1), Fifth Schedule of Constitution, can exercise powers concerning any particular Act of Parliament or legislature of State – Governor can direct that such law shall not apply to Scheduled Areas or any part thereof – Governor is empowered to apply such law to Scheduled Area or any part thereof in the State subject to such exceptions and modifications as he may specify in notification and can also issue a notification with retrospective effect – Governor is empowered under Para 5(1), Fifth Schedule of Constitution, to direct that any particular Act of Parliament or Legislature of the State, shall not apply to a Scheduled Area or apply the same with exceptions and modifications – Governor can make a provision within parameters of amendment/ modification of Act of Parliament or State legislature – Power of Governor under Para 5(1), Fifth Schedule to Constitution does not extend to subordinate legislation, it is with respect to an Act enacted in sovereign function by Parliament or legislature of State which can be dealt with. (Paras 154)

(C) Constitution of India – Para 5(1), Fifth Schedule – Powers of Governor – Governor’s power under Para 5(1) of Fifth Schedule to Constitution is subject to some restrictions, which have to be observed by Parliament or legislature of State while making law and cannot override fundamental rights guaranteed under Part III of Constitution – In exercise of power under Para 5(1) of Fifth Schedule to Constitution of India, Governor cannot override notification issued by President in exercise of powers under Article 371D – Power has to be exercised harmoniously with such an order issued under Article 371D, not in conflict thereof. (Paras 154)

(D) Constitution of India – Article 309 and Para 5(1), Fifth Schedule – Framing of rules – Rules framed under proviso to Article 309 of Constitution cannot be said to be Act of Parliament or State legislature – Though rules have statutory force, they cannot be said to have been framed under any Act of Parliament or State legislature – Rules remain in force till such time legislature exercises power – Power of Governor under Para 5(1) of Schedule V of Constitution is restricted to modifying or not to apply, Acts of Parliament or legislature of State – Rules could not have been amended in exercise of powers conferred under Para 5(1) of Schedule V – Rules made under proviso to Article 309 of Constitution cannot be said to be an enactment by State legislature – It was not open to Governor to issue impugned G.O. No.3/2000 – Provisions in Para 5 Schedule V do not override rights guaranteed in Part III of Constitution – Limitations on legislature in field of legislation are applicable to Governor also. (Paras 57 and 61)

(E) Service Law – Reservation – Provision for 100% reservation to Scheduled Tribe candidates out of whom 33.1/3% shall be women for post of teachers in schools in scheduled areas in State of Andhra Pradesh – Validity of – G.O.Ms. No.3/2000 providing for 100% reservation is not permissible under Constitution, outer limit is 50 per cent as specified in Indra Sawhney case – Notification in question cannot be treated as classification made under Article 16(1) – Once reservation has been provided to Scheduled Tribes under Article 16(4), no such power can be exercised under Article 16(1) – Notification is violative of Articles 14 and 16(4) of Constitution of India – Conditions of eligibility in the notification with a cut-off date, i.e., 26.1.1950, to avail benefits of reservation, is unreasonable and arbitrary one – Notification is ultra vires to Para 5(1) of Schedule V of Constitution – Governor in exercise of power conferred by Para 5(1) of Fifth Schedule of Constitution, cannot provide 100% reservation – However, appointments so made saved conditionally that reorganised States of Andhra Pradesh and Telangana not to attempt a similar exercise in future. [Section 78 of the A.P. Education Act, 1982; Rule 22 of Andhra Pradesh State and Subordinate Service Rules, 1996] (Paras 51, 115 and 154)

(F) Constitution of India – Para 5(1), Fifth Schedule – Powers of Governor – Power is conferred on Governor to deal with scheduled areas – It is not meant to prevail over Constitution – Power of Governor is pari passu with legislative power of Parliament and State – Legislative power can be exercised by Parliament or State subject to provisions of Part III of Constitution – Power of Governor does not supersede fundamental rights under Part III of Constitution – It has to be exercised subject to Part III and other provisions of Constitution – When Para 5 of Fifth Schedule confers power on Governor, it is not meant to be conferral of arbitrary power – Constitution can never aim to confer any arbitrary power on constitutional authorities – They are to be exercised in a rational manner keeping in view objectives of Constitution – Powers are not in derogation but furtherance of constitutional aims and objectives. (Para 78)

(G) Constitution of India – Article 371D and Para 5(1), Fifth Schedule – Overriding effect – Non-obstante clause in Article 371D will not annul non-obstante clause in Para 5 of Fifth Schedule – Two constitutional provisions operate in distinct domain – Article 371D was not enacted to be a super imposition on Fifth Schedule – Object and purpose of legislations or provisions with respect to non-obstante clause are distinct. (Para 83)

(H) Constitution of India – Article 14 – Equality before law – Concept of equality is antithesis of arbitrariness in action – There cannot be any legislation in violation of equality, which violates basic concept of equality as enshrined in Part III of Constitution – An administrative order has to be tested on anvil of non-arbitrariness – Concept of equality cannot be pressed to commit another wrong – Concept of equality enshrined in Article 14 of Constitution is a positive concept – It is not a concept of negative equality – It cannot be used to perpetuate an illegality – Equity cannot be applied when it arises out of illegality – Doctrine of equity would not be attracted when benefits were conferred on the basis of illegality – Article 14 is to be understood in light of Directive Principles – Classification made cannot be unreasonable – It can be based on a reasonable basis – It cannot be arbitrary but must be rational – It should be based on intelligible differentia and must have rational nexus to object sought to be achieved – There are various fields in which Article 14 has extended its reach and ambit – Provision is very deep and pervasive – It kills evil of discrimination to bring equality. (Paras 91, 92 and 93)

(I) Constitution of India – Article 16(4) – Reservation in services – Article 16(4) is exhaustive of special provisions that can be made in favour of a backward class of citizens, that is, other backward classes, scheduled castes, and scheduled tribes – Under Article 16(1), if State wants to make any reservation on whatever point, to address a specific situation, Article 16(4) acts as a damper as there would be whittling down of vacancies for free competition, and that is not a reasonable thing to do. (Para 138)

Facts of the Case:

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

Findings of the Court:

We cannot ignore the fact that a similar G.O. was issued by erstwhile State Government of Andhra Pradesh in the year 1986, which was quashed by the State Administrative Tribunal, against which an appeal was preferred in this Court, which was dismissed as withdrawn in the year 1998. After withdrawal of the appeal from this Court, it was expected of the erstwhile State of Andhra Pradesh not to resort to such illegality of providing 100% reservation once again.

Result : Appeals allowed.