2022 Supreme(SC) 643

SUPREME COURT OF INDIA
M.R. SHAH, B.V. NAGARATHNA, JJ.
Satyajit Kumar & Ors. – Appellant(s)
Versus
The State of Jharkhand & Ors. – Respondent(s)
CIVIL APPEAL NO. 4038, 4039, 4040, 4041, 4042, 4043, 4044, 4045, 4046, 4047, 4048, 4049 & 4050 of 4079 of 2022
Decided On : 02-08-2022

IMPORTANT POINTS
(1) 100% reservation provided for local residents of concerned Scheduled Districts / Areas only would be violative of Article 16(2) of Constitution of India.
(2) Quality of education of school-going children cannot be compromised by giving 100% reservation in favour of teachers of same/some districts and prohibiting appointment to more meritorious teachers.
(3) There is distinction between illegal and irregular appointment and former cannot be regularized.
(4) Power of Governor does not supersede fundamental rights guaranteed under Part III of Constitution – It has to be exercised subject to Part III and other provisions of Constitution.

Headnote:

(A) Constitution of India – Articles 16 and 35 and Paragraph 5(1) of Fifth Schedule – Jharkhand Government (Recruitment of Teachers and Non-Teaching Staff in Secondary Schools and their Service and Condition) Rules, 2015 – Power of Governor – Power of Governor does not supersede fundamental rights guaranteed 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 confer arbitrary power – Constitution can never aim to confer any arbitrary power on constitutional authorities – They are to be exercised in a legal and rational manner keeping in view objectives and provisions of Constitution – Powers are not in derogation but in furtherance of Constitutional aims and objectives – Non-obstante clause contained in Para 5(1) of Fifth Schedule of Constitution shall be read with respect to power of Governor to suspend and/or modify law made by Parliament despite Articles 244 and 245 of Constitution of India – It cannot be read as conferring upon Governor absolute power and/or unfettered power, notwithstanding provisions contained in Part III of Constitution. (Paras 18.4 and 18.5)

(B) Jharkhand Government (Recruitment of Teachers and Non-Teaching Staff in Secondary Schools and their Service and Condition) Rules, 2015 – Constitution of India – Articles 16(3) and 35 and Paragraph 5(1) of Fifth Schedule – 100% reservation for local candidates / residents of Thirteen Scheduled Areas in State of Jharkhand, for appointment to posts of Trained Graduate Teacher in Government Secondary Schools – Vires of – Reservation that is permissible by protective mode, by making it 100 percent would become discriminatory and impermissible – Opportunity of public employment cannot be denied unjustly to incumbents, and it is not the prerogative of a few – Citizens have equal rights and total exclusion of others by creating opportunity for one class is not contemplated by founding fathers of Constitution of India – Impugned Order/ Notification No.5938 and Order No.5939 dated 14.07.2016 providing 100% reservation for local residents of concerned Scheduled Districts/ Areas only can be said to be (1) beyond scope and ambit of powers conferred upon Governor under para 5(1) of Fifth Schedule of Constitution of India – 100% reservation provided for local residents of concerned Scheduled Districts / Areas only would be violative of Article 16(2) of Constitution of India and affecting rights of other candidates / citizens of non-scheduled areas / Districts guaranteed under Part III of Constitution of India – Exercise of powers by Governor under Para 5(1) of Fifth Schedule of Constitution of India modifying Recruitment Rules, 2015 which are framed under Article 309 of Constitution of India which can be said to be subordinate legislation and cannot be said to be an Act or Law made by Parliament and / or State Legislature is beyond scope and ambit of Governor’s power under Para 5(1) of Fifth Schedule of Constitution of India – Impugned Notification/Order making 100% reservation for local resident of concerned Scheduled Area/Districts (reservation on the basis of resident) is ultra vires to Article 35 r/w Article 16(3) of Constitution of India. (Paras 19, 20 and 24)

(C) Service Law – Reservation – [Constitution of India – Article 142] – Sustainability of 100% reservation for local candidates / residents of Thirteen Scheduled Areas in State of Jharkhand, for appointment to posts of Trained Graduate Teacher in Government Secondary Schools – It may help student at primary level while providing basic education to be taught in their own tribal language – But same principle may not be applicable when question is of providing education at higher level, above 5th standard – If candidates belonging to other areas (non-Scheduled Areas/ Districts) are given opportunity to impart education (who may be more meritorious than candidates belonging to Scheduled Areas / Districts) than it will be more beneficial to students belonging to Scheduled Areas and their quality of education shall certainly improve – Quality of education of school-going children cannot be compromised by giving 100% reservation in favour of teachers of same/some districts and prohibiting appointment to more meritorious teachers – Impugned Order/Notification making 100% reservation for local resident of concerned Scheduled Districts/Areas is violative of Article 16(2) as also ultra vires Article 13 of Constitution of India and shall be void – High Court has not committed any error in concluding and holding that Notification No.5938 and Order No.5939 dated 14.7.2016 issued by State Government providing 100% reservation for local residents of concerned Scheduled Districts/Areas as being unconstitutional and ultra vires Articles 14, 13(2), 15 and 16(2) of Constitution of India – Present direction is issued in exercise of powers under Article 142 of Constitution of India in larger public interest of Scheduled Areas/Districts. (Paras 22.1, 23, 27 and 28)

Facts of the case:

Feeling aggrieved and dissatisfied with the impugned common judgment and order dated 21.09.2020 passed in Writ Petition No.1387 of 2017 and other allied writ petitions and connected applications, by which, High Court has allowed said writ petitions and has observed, held and declared that the Notification No.5938 and the Order No.5939 dated 14.07.2016 issued by the State of Jharkhand and Advertisement No.21 of 2016 dated 28.12.2016 modified by Advertisement No.21 of 2016 published on 04.12.2017, by the State Government through Department of Personnel, Administrative Reforms and Rajbhasha inviting application for appointment to posts of Trained Graduate Teacher in the Government Secondary Schools to the extent of making 100% reservation for the local candidates / residents of Thirteen Scheduled Areas in the State of Jharkhand as illegal, ultra vires and unconstitutional and consequently has quashed the appointments of Trained Graduate Teachers made pursuant to the advertisement, in the Scheduled Districts relating to the local residents of those Districts, original respondents – candidates belonging to Thirteen Scheduled Districts have preferred present appeals.

Questions which are posed for consideration of this Court are as under:

I. Whether in exercise of powers conferred under Paragraph 5(1) of Fifth Schedule to Constitution of India, whether, the Governor can provide for 100% reservation contrary to Part III of Constitution of India, more particularly, guaranteed under Article 16(1) and (2) ?

II. Whether in exercise of powers under paragraph 5(1) of Fifth Schedule to Constitution of India Governor has the power to modify relevant Recruitment Rules framed under Article 309 of Constitution of India ?

Findings of Court:

High Court has not committed any error in concluding and holding that the Notification No.5938 and Order No.5939 dated 14.7.2016 issued by State Government providing 100% reservation for local residents of concerned Scheduled Districts/Areas as being unconstitutional and ultra vires Articles 14, 13(2), 15 and 16(2) of Constitution of India. Directions issued by High Court in the impugned judgment and order while setting aside all the appointments made pursuant to the Notification / Order dated 14.07.2016 and Advertisement No.21 of 2016 dated 28.12.2016 as modified on 04.12.2017 and to go in for fresh/de novo recruitment process for the Scheduled Areas/Districts is hereby modified.

Result : Appeals Partly allowed.