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

- **Citation:** [2020] 6 S.C.R. 28
- **Court:** Supreme Court of India
- **Decided:** 2020-04-22
- **Case number:** Civil Appeal No. 3609 of 2002
- **Bench:** Arun Mishra, Indira Banerjee, Vineet Saran, M. R. Shah, Aniruddha Bose
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/chebrolu-leela-prasad-rao-ors-v-state-of-a-p-ors-34097
- **Pages:** 135

## Headnote

Constitution of India - Arts. 14, 15, 16(1), 16(4), 244 and
371 D; Para 5(1) of Schedule V - A.P. Education Act, 1982 - A.P.
Regulation of Reservation and Appointment to Public Services Act,
1997 - The G.O.Ms. No. 3/2000 issued by the erstwhile State of
Andhra Pradesh provided 100% reservation to the Scheduled Tribe
candidates for the post of teachers in the schools in the scheduled
areas in the State of Andhra Pradesh - Validity of - Held: G.O.Ms.
No. 3/2000 providing for 100% reservation is not permissible under
the Constitution, the outer limit is 50% as specified in Indra Sawhney
case - By providing 100% reservation to the scheduled tribe has
deprived the scheduled castes and other backward classes also of
their due representation - The concept of reservation is not
proportionate but adequate - The action is thus unreasonable and
violative of provisions of Arts. 14, 15 and 16 of the Constitution of
India - 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) of
Schedule V of the Constitution, can exercise the powers concerning
any particular Act of the Parliament or the legislature of the State -
Para 5(1) of Schedule V confers power upon the Governor to
exclude law, which is applicable in a Scheduled area - It also
empowers the Governor to apply the same with exceptions and
modifications as he deems fit - However, no new law can be
formulated while exercising power under para 5(1) of Schedule V
- The power of modification cannot extend to re-writing the entire
statute.
Constitution of India - Para 5(1) of Schedule V and Art. 309
- A.P. State and Subordinate Service Rules, 1996 - rr. 22, 22 A -
G.O.Ms. No. 3/2000 issued by the erstwhile State of Andhra Pradesh
[2020] 6 S.C.R. 28
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provided 100% reservation to the Scheduled Tribe candidates for
the post of teachers in the schools in the scheduled areas - The
G.O.Ms. No. 3/2000, inter alia, refers to the Rules, 1996 and the
said rules have been framed under proviso to Art. 309 of the
Constitution - The rules 22 and 22 A framed u/Art.309 were amended
- Held: The power of the Governor under Para 5(1) of Schedule V
of the Constitution is restricted to modifying or not to apply, Acts of
the Parliament or legislature of the State - Thus, the rules could not
have been amended in the exercise of the powers conferred under
Para 5(1) Schedule V - The rules made under the proviso to Art.
309 of the Constitution cannot be said to be an enactment by the
State legislature - Thus, it was not open to the Governor to issue
the impugned G.O.Ms. No. 3/2000.
Constitution of India - Para 5(1) of Schedule V - Power of
Governor extend to subordinate legislation or not - Held: The power
of the Governor under Para 5(1), Fifth Schedule to the Constitution
does not extend to subordinate legislation, it is with respect to an
Act enacted in the sovereign function by the Parliament or legislature
of the State which can be dealt with.
Constitution of India - Para 5(1) of Schedule V - Can exercise
of the power conferred in para 5(1) of the fifth Schedule override
fundamental rights guaranteed under Part-III - Held: The power
of the Governor does not supersede the fundamental rights under
part-III of the Constitution - When Para 5 of the fifth Schedule
confers power on the Governor, it is not meant to be conferral of
arbitrary power - The power is not in derogation but the furtherance
of the Constitutional aims and objectives.
Constitution of India - Para 5(1) of Schedule V - Effect of
the non-obstante clause - Held: The provision of the fifth Schedule
beginning with the words "notwithstanding anything in this
constitution" cannot be construed as taking away the provision
outside the limitation on the amending power and has to be
harmoniously construed consistent with the fundamental principles
and basic features of the Constitution.
Constitution of India - Para 5(1) of Sche

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CHEBROLU LEELA PRASAD RAO & ORS.
v.
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 and
371 D; Para 5(1) of Schedule V - A.P. Education Act, 1982 - A.P.
Regulation of Reservation and Appointment to Public Services Act,
1997 - The G.O.Ms. No. 3/2000 issued by the erstwhile State of
Andhra Pradesh provided 100% reservation to the Scheduled Tribe
candidates for the post of teachers in the schools in the scheduled
areas in the State of Andhra Pradesh - Validity of - Held: G.O.Ms.
No. 3/2000 providing for 100% reservation is not permissible under
the Constitution, the outer limit is 50% as specified in Indra Sawhney
case - By providing 100% reservation to the scheduled tribe has
deprived the scheduled castes and other backward classes also of
their due representation - The concept of reservation is not
proportionate but adequate - The action is thus unreasonable and
violative of provisions of Arts. 14, 15 and 16 of the Constitution of
India - 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) of
Schedule V of the Constitution, can exercise the powers concerning
any particular Act of the Parliament or the legislature of the State -
Para 5(1) of Schedule V confers power upon the Governor to
exclude law, which is applicable in a Scheduled area - It also
empowers the Governor to apply the same with exceptions and
modifications as he deems fit - However, no new law can be
formulated while exercising power under para 5(1) of Schedule V
- The power of modification cannot extend to re-writing the entire
statute.
Constitution of India - Para 5(1) of Schedule V and Art. 309
- A.P. State and Subordinate Service Rules, 1996 - rr. 22, 22 A -
G.O.Ms. No. 3/2000 issued by the erstwhile State of Andhra Pradesh
[2020] 6 S.C.R. 28
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provided 100% reservation to the Scheduled Tribe candidates for
the post of teachers in the schools in the scheduled areas - The
G.O.Ms. No. 3/2000, inter alia, refers to the Rules, 1996 and the
said rules have been framed under proviso to Art. 309 of the
Constitution - The rules 22 and 22 A framed u/Art.309 were amended
- Held: The power of the Governor under Para 5(1) of Schedule V
of the Constitution is restricted to modifying or not to apply, Acts of
the Parliament or legislature of the State - Thus, the rules could not
have been amended in the exercise of the powers conferred under
Para 5(1) Schedule V - The rules made under the proviso to Art.
309 of the Constitution cannot be said to be an enactment by the
State legislature - Thus, it was not open to the Governor to issue
the impugned G.O.Ms. No. 3/2000.
Constitution of India - Para 5(1) of Schedule V - Power of
Governor extend to subordinate legislation or not - Held: The power
of the Governor under Para 5(1), Fifth Schedule to the Constitution
does not extend to subordinate legislation, it is with respect to an
Act enacted in the sovereign function by the Parliament or legislature
of the State which can be dealt with.
Constitution of India - Para 5(1) of Schedule V - Can exercise
of the power conferred in para 5(1) of the fifth Schedule override
fundamental rights guaranteed under Part-III - Held: The power
of the Governor does not supersede the fundamental rights under
part-III of the Constitution - When Para 5 of the fifth Schedule
confers power on the Governor, it is not meant to be conferral of
arbitrary power - The power is not in derogation but the furtherance
of the Constitutional aims and objectives.
Constitution of India - Para 5(1) of Schedule V - Effect of
the non-obstante clause - Held: The provision of the fifth Schedule
beginning with the words "notwithstanding anything in this
constitution" cannot be construed as taking away the provision
outside the limitation on the amending power and has to be
harmoniously construed consistent with the fundamental principles
and basic features of the Constitution.
Constitution of India - Para 5(1) of Schedule V - Whether
there is any conflict between the Presidential order and G.O.Ms.
No. 3/2000 issued under the order of the Governor under para
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5(1) of the Schedule V - Held: The Presidential order was issued
providing district/zone for local cadre, on the other hand, the order
issued by the Governor has reserved all the posts of teachers in the
Scheduled Areas for Schedule Tribe candidates - The aspiring
candidates of the district/ zone in the Scheduled Area cannot apply
for the post of teachers in the district as 100% reservation was
made vide G.O.Ms. No. 3/2000 by the Governor and it is also not
disputed that aspiring candidates cannot apply outside the district/
zone because of the restrictions u/Art. 371D of the Constitution -
Thus, there is a clear repugnancy between the notification issued
by the president and the subsequent order issued by the Governor
under Para 5(1) of the Schedule V - It is not possible to harmonise
both notifications - The Governor is competent to issue an order
which is not in conflict with Presidential Order - The Governor
could not have issued the order in derogation to the Presidential
order - In the instant case, 100% reservation could not have been
provided as that violates the Presidential Order.
Constitution of India - Arts. 16(1) and 16(4) - Whether
notification 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 cannot
be said to be a case of classification that has been made u/Art.
16(1) - The incumbents of various categories have the right to stake
a claim for the employment of which they have been deprived -
Thus, it is not a matter of classification - The reservation u/Art.
16(4) was made - The order providing 100% reservation is arbitrary,
illegal, impermissible and unconstitutional.
Constitution of India - G.O.Ms No. 3/2000 required candidate
or the parents to reside in the area continuously w.e.f. 26.01.1950
to date - Propriety of - Held: There is no rhyme or reason to require
continuous residence for last 50 years or more - It overlooks the
rights of various other persons who might have settled decades
together in the area in question - It is discriminatory vis-a-vis to the
Scheduled tribes also settled in the area - The conditions of eligibility
in the notification with cut-off date i.e. 26.01.1950, to avail benefit
of reservation, is unreasonable and arbitrary one.
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Allowing the appeals, the Court
HELD: What is the scope of Para 5(1) of Schedule V of the
Constitution of India?; and Does the provision empower the
Governor to make a new law?
1. Para 5(1) of Schedule V to the Constitution confers power
upon the Governor to exclude law, which is applicable in a
scheduled area. It also empowers the Governor to apply the same
with exceptions and modifications as he deems fit. However, the
power to exclude an area from applicability, modification, and to
create exceptions in the law, which was applicable in the area,
cannot be said to be at par to the regulation-making power
conferred 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 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. The power of modification cannot extend to
re-writing the entire statute. The power cannot be used to
supplant the law, which is applicable. The law has to be applied
only with exceptions or modifications. It cannot totally supersede
the existing law, which is wholly opposed to the idea of applicable
law as in that case it would tantamount to the new law and not the
modification or exception or creation of exceptions or
modifications to the applicable law. The object and substance of
law applicable cannot be changed within the purview of Para 5(1),
though the applicability of applicable law can be excluded. In case
the Governor decides the law to remain applicable, he has the
power only to create exceptions and to modify the same, not to
create a new one juxtaposed to the same applicable law.
[Para 49][72-A-C]
3. Thus, the Governor in the exercise of powers under Para
5(1), Fifth Schedule of the Constitution, can exercise the powers
concerning any particular Act of the Parliament or the legislature
of the State. The Governor can direct that such law shall not apply
to the Scheduled Areas or any part thereof. The Governor is
empowered to apply such law to the Scheduled Area or any part
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thereof in the State subject to such exceptions and modifications
as he may specify in the notification and can also issue a
notification with retrospective effect. [Para 154][160-G-H]
4. The Governor is empowered under Para 5(1), Fifth
Schedule of the Constitution, to direct that any particular Act of
Parliament or the Legislature of the State, shall not apply to a
Scheduled Area or apply the same with exceptions and
modifications. The Governor can make a provision within the
parameters of amendment/ modification of the Act of Parliament
or State legislature. The power to make new laws/regulations, is
provided in Para 5(2), Fifth Schedule of the Constitution for the
purpose mentioned therein, not under Para 5(1) of the Fifth
Schedule to the Constitution of India. [Para 154][161-A-B]
Does the power under Para 5(1) of the Fifth Schedule to
the Constitution of India extend to subordinate legislation?
5. In substance, Rules 22 and 22A of A.P. State and
Subordinate Service Rules, 1996 framed under Article 309 have
been amended, which could not have been done as that is not the
Act of the Parliament or the legislature of the State. Thus, the
Governor could not have exercised power concerning rule framed
under the proviso to Article 309 of the Constitution. [Para 54][73E-F]
6. The rules framed under the proviso to Article 309 of the
Constitution cannot be said to be the Act of Parliament or State
legislature. Though the rules have the statutory force, they cannot
be said to have been framed under any Act of Parliament or State
legislature. The rules remain in force till such time the legislature
exercises power. The power of the Governor under Para 5(1) of
Schedule V of the Constitution is restricted to modifying or not
to apply, Acts of the Parliament or legislature of the State. Thus,
the rules could not have been amended in the exercise of the
powers conferred under Para 5(1) of Schedule V. The rules made
under proviso to Article 309 of the Constitution cannot be said
to be an enactment by the State legislature. Thus, in the opinion
of this Court, it was not open to the Governor to issue the
impugned G.O. No.3/2000. [Para 57][75-B-C]
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7. The power of the Governor under Para 5(1), Fifth
Schedule to the Constitution does not extend to subordinate
legislation, it is with respect to an Act enacted in the sovereign
function by the Parliament or legislature of the State which can
be dealt with. [Para 154][161-C]
Can the exercise of the power conferred in Para 5 of the
Fifth Schedule override fundamental rights guaranteed under Part
III?
8. The power is conferred on the Governor to deal with the
scheduled areas. It is not meant to prevail over the Constitution.
The power of the Governor is pari passu with the legislative power
of Parliament and the State. The legislative power can be
exercised by the Parliament or the State subject to the provisions
of Part III of the Constitution. In the opinion of this Court, the
power of the Governor does not supersede the fundamental rights
under Part III of the Constitution. It has to be exercised subject
to Part III and other provisions of the Constitution. When Para 5
of the Fifth Schedule confers power on the Governor, it is not
meant to be conferral of arbitrary power. The Constitution can
never aim to confer any arbitrary power on the constitutional
authorities. They are to be exercised in a rational manner keeping
in view the objectives of the Constitution. The powers are not in
derogation but the furtherance of the constitutional aims and
objectives. [Para 78][90-E-G]
9. Thus, the Governor's power under Para 5(1) of the Fifth
Schedule to the Constitution is subject to some restrictions, which
have to be observed by the Parliament or the legislature of the
State while making law and cannot override the fundamental rights
guaranteed under Part III of the Constitution. [Para 154][161-D]
Whether the exercise of power under the Fifth Schedule of
the Constitution overrides any parallel exercise of power by the
President under Article 371D?
10. The main question to be considered is whether there is
any conflict between the Presidential Order and the G.O. Ms.
No. 3 of 2000 issued under the order of the Governor under Para
5(1) of the Fifth Schedule of the Constitution. Considering the
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geographical disparity in public employment, Article 371D was
inserted in the Constitution, providing candidates from certain
districts/zones to form the local cadre for different posts for
different parts of the States. The Presidential Order was issued
providing district/zone for local cadre, on the other hand, the order
issued by the Governor has reserved all the posts of teachers in
the Scheduled Areas for Schedule Tribe candidates. The aspiring
candidates of the district/zone in the Scheduled Area cannot apply
for the post of teachers in the district as 100 per cent reservation
was made vide G.O.Ms. No. 3 of 2000 by the Governor. It is also
not disputed that aspiring candidates cannot apply outside the
district/zone because of the restrictions under Article 371D of
the Constitution. As there is 100 per cent reservation provided
for the Scheduled Tribes in the Scheduled Areas, other candidates
of Scheduled Castes, General and Other Backward Classes
category cannot apply at all in other districts. They are being
denied the opportunity of getting the employment as against the
posts in question. Thus, the order issued by the Governor is
clearly in conflict with the Presidential Order issued under Article
371D. The candidates of local areas or other candidates except
for Scheduled Tribes have been deprived of the opportunity of
seeking public employment because of the order issued by the
Governor, and they cannot apply outside the local area in view of
the Presidential notification. [Para 89][101-D-H; 102-A]
11. The Governor is competent to issue an order which is
not in conflict with the Presidential Order. The Governor issued
the order when the Presidential Order was already in force in the
entire State. The Governor could not have issued the order in
derogation to the Presidential Order. In opinion of this Court,
100 per cent reservation could not have been provided as that
violates the Presidential Order. [Para 90][102-D]
12. Thus, in the exercise of power under Para 5(1) of the
Fifth Schedule to the Constitution of India, the Governor cannot
override the notification issued by the President in the exercise
of powers under Article 371D. The power has to be exercised
harmoniously with such an order issued under Article 371D, not
in conflict thereof. [Para 154][161-E]
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Whether 100% reservation is permissible under the
Constitution?
13. By providing 100 percent reservation to the scheduled
tribes has deprived the scheduled castes and other backward
classes also of their due representation. The concept of
reservation is not proportionate but adequate, as held in Indra
Sawhney. The action is thus unreasonable and arbitrary and
violative of provisions of Articles 14, 15 and 16 of the Constitution
of India. It also impinges upon the right of open category and
scheduled tribes who have settled in the area after 26th January
1950. The total percentage of reservation provided for Scheduled
Tribes in the State is 6%. By providing 100 percent reservation
in the scheduled areas, the rights of the tribals, who are not
residents of the scheduled areas, shall also be adversely affected.
As per Presidential order under Article 371-D, they cannot stake
their claim in other areas. The posts in other areas are to be
reduced by making a 100% reservation in a particular area.
[Para 127][141-E-G]
14. A reservation that is permissible by protective mode,
by making it 100 percent would become discriminatory and
impermissible. The opportunity of public employment cannot be
denied unjustly to the incumbents, and it is not the prerogative
of few. The citizens have equal rights, and the total exclusion of
others by creating an opportunity for one class is not contemplated
by the founding fathers of the Constitution of India. Equality of
opportunity and pursuit of choice under Article 51-A cannot be
deprived of unjustly and arbitrarily. [Para 134][143-D]
15. This Court finds that G.O. Ms. No.3/2000 is wholly
impermissible and cannot be said to be legally permissible and
constitutionally valid. It can be said that action is not only irrational,
but it violates the rights guaranteed under Part III of the
Constitution and is not sustainable. [Para 135][143-F]
16. Thus, G.O.Ms. No.3/2000 providing for 100 per cent
reservation is not permissible under the Constitution, the outer
limit is 50 per cent as specified in Indra Sawhney. [Para 154][161E-F]
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Whether the notification merely contemplates a
classification under Article 16(1) and not reservation under Article
16(4)?
17. The 100 percent reservation has been provided. It
cannot be said to be a case of classification that has been made
under Article 16(1). Assuming, for the sake of argument, it is to
be a case of classification under Article 16(1), it would have been
discriminatory and grossly arbitrary without rationale and violative
of constitutional mandate. [Para 140][154-C]
18. The incumbents of various categories have the right to
stake a claim for the employment of which they have been
deprived. Thus, it is not a matter of classification. The reservation
under Article 16(4) was made. By way of 100% reservation, the
employment to others was illegally deprived and they have no
chance of employment as against the post of teachers elsewhere
because of the order under Article 371D in which district/zone is
a unit. It is a clear case of tinkering with reservation. [Para 141]
[154-D]
19. Thus, the notification in question cannot be treated as
classification made under Article 16(1). Once the reservation has
been provided to Scheduled Tribes under Article 16(4), no such
power can be exercised under Article 16(1). The notification is
violative of Articles 14 and 16(4) of the Constitution of India.
[Para 154][161-F]
Whether the conditions of eligibility that is the origin and
cut-off date to avail the benefit of reservation in the notification
is reasonable:
20. The G.O. in question requires candidate or the parents
to reside in the area continuously w.e.f. 26.1.1950 to date. There
is no rhyme or reason to require continuous residence for last 50
years or more. It overlooks the rights of various other persons
who might have settled decades together in the area in question.
It is discriminatory vis-a-vis to the scheduled tribes also settled
in the area and it has no purpose to be achieved and imposes
restriction which was not even provided in the Presidential Order
issued under Article 371D of the Constitution of India with respect
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to residential or educational requirements. Thus, it does not lay
down valid conditions. The same is fixed in highly unreasonable
and arbitrary manner and limits zone of consideration to miniscule
where an opportunity for public employment has to be afforded
to all concerned with reasonable rights. The conditions of
eligibility in the notification with a cut-off date, i.e., 26.1.1950, to
avail the benefits of reservation, is unreasonable and arbitrary
one. [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 Surya
Sivarama Sastry and Anr. v. State of Andhra Pradesh
[1962] 2 SCR 535; Edwingson Bareh v. State of Assam
and 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) 3
SCC 434 : [2006] 2 SCR 920; S.K. Gupta & Anr. v.
K.P. Jain & Anr., (1979) 3 SCC 54 : [1979] 2 SCR
1184; S.R. Chaudhuri v. State of Punjab & Ors., (2001)
7 SCC 126 : [2001] 1 Suppl. SCR 621; Col. A.S. Iyer
and Ors. v. V. Balasubramanyam, (1980) 1 SCC 634 :
[1980] 1 SCR 1036; Ajay Hasia and Ors. v. Khalid
Mujib 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 Gandhi
v. Union of India & Anr., (1978) 1 SCC 248 : [1978] 2
SCR 621; R.C. Poudyal v. Union of India & Ors., (1994)
Suppl. 1 SCC 324 : [1993] 1 SCR 891; State of Sikkim
v. Surendra Prasad Sharma & Ors., (1994) 5 SCC 282
: [1994] 5 SCR 563; Peerless General Finance and
Investment Co. Ld. And Anr. v. Reserve Bank of India,
(1992) 2 SCC 343 : [1992] 1 SCR 406; V. Jagannadha
Rao and Ors. v. State of A.P. and Ors., (2001) 10 SCC
401 : [2001] 5 Suppl. SCR 179; S. Prakasha Rao and
CHEBROLU LEELA PRASAD RAO & ORS. v.
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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 SCR
439; M. Nagaraj and Ors. v. Union of India and Ors.,
(2006) 8 SCC 212 : [2006] 7 Suppl. SCR 336 - relied
on.
Jatindra v. Province of Bihar, (1949) FLJ 225;
Rajasthan Housing Board v. New Pink City Nirman
Sahkari 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 SCC
225 : [1973] Suppl. SCR 1; Waman Rao and Ors. v.
Union of India and Ors., (1981) 2 SCC 362 : [1981] 2
SCR 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 Eravath
Kanapravan 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 Works
Limited v. Industry Facilitation Council and Anr., (2006)
8 SCC 677 : [2006] 6 Suppl. SCR 189; Maharashtra
Tubes Ltd. v. State Industrial & Investment Corporation
of 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 and
Ors. 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. Raghunath
v. State of Karnataka and Ors., [1991] Suppl. 1 SCR
387; Sarwan Singh and Ors. v. Kasturi Lal, [1977] 2
SCR 421, Sanwarmal Kejriwal v. Vishwa Co-operative
A
B
C
D
E
F
G
H
39
Housing Society Ltd. and Ors., [1990] 1 SCR 862, The
South India Corporation (P) Ltd. v. The Secretary, Board
of Revenue Trivandrum and Ors., [1964] 4 SCR 280,
Dr. Fazal Ghafoor v. Principal, Osmania Medical
College, 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, John
Vallamattom v. Union of India, (2003) 6 SCC 611 :
[2003] 1 Suppl. SCR 638; General Manager,
Uttranchal Jal Sansthan v. Laxmi Devi, (2009) 7 SCC
205 : [2009] 9 SCR 791; State of West Bengal v.
Debashish Mukherjee, AIR 2011 SC 3667 : [2011] 13
SCR 1077; Mohan Kumar Singhania & Ors. v. Union
of India & Ors., (1992) Supp. 1 SCC 594 : [1991] 1
Suppl. 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 SCC
202 : [2010] 6 SCR 972; R. Chitralekha v. State of
Mysore, AIR 1964 SC 1823 : [1964] 6 SCR 368; AIIMS
Students Union v. A.I.I.M.S., JT 2001 (7) SC 12;
Lingappa Pochanna Appelwar & Ors. v. State of
Maharashtra & Ors. (1985) 1 SCC 479 : [1985] 2 SCR
224; Barium Chemicals v. Company Law Board AIR
1967 SC 295 : [1966] Suppl. SCR 311; Jarnail Singh
& Ors. v. Lachhmi Narain Gupta & Ors., (2018) 10
SCC 396 : [2018] 10 SCR 663 - referred to.
Case Law Reference
[1970] 3 SCR 233
relied on
Para 40
[1962] 2 SCR 535
relied on
Para 41
[1966] 2 SCR 770
relied on
Para 42
(1997) 8 SCC 191
referred to
Para 43
[2015] 5 SCR 365
referred to
Para 43
CHEBROLU LEELA PRASAD RAO & ORS. v.
STATE OF A.P. & ORS.
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[1962] 1 SCR 688
relied on
Para 45
[2006] 2 SCR 920
relied on
Para 46
[1979] 2 SCR 1184
relied on
Para 47
[1981] 1 SCR 1024
referred to
Para 55
[1973] Suppl. SCR 1
referred to
Para 58
[1981] 2 SCR 1
referred to
Para 59
[2007] 1 SCR 706
referred to
Para 60
[2001] 1 Suppl. SCR 621
relied on
Para 63
[1980] 1 SCR 1036
relied on
Para 64
[1981] 2 SCR 79
relied on
Para 65
[1974] 2 SCR 348
relied on
Para 66
[1978] 2 SCR 621
relied on
Para 67
[1990] 2 SCR 84
referred to
Para 68
[1993] 1 SCR 891
relied on
Para 71
[1994] 5 SCR 563
relied on
Para 72
[1996] 2 Suppl. SCR 1
referred to
Para 75
[1992] 1 SCR 406
relied on
Para 76
[1986] 3 SCR 866
referred to
Para 77
[2006] 6 Suppl. SCR 189
referred to
Para 81
[1993] 1 SCR 340
referred to
Para 81
[1970] 1 SCR 115
referred to
Para 82
[2015] 14 SCR 328
referred to
Para 82
(1988) 4 SCC 532
referred to
Para 82, 83
(1988) Suppl. SCC 794
referred to
Para 82
[2003] 2 SCR 781
referred to
Para 82
[1977] 2 SCR 421
referred to
Para 83
[1990] 1 SCR 862
referred to
Para 83
A
B
C
D
E
F
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[1964] 4 SCR 280
referred to
Para 83
(1988) 4 SCC 526
referred to
Para 86
(1988) Suppl. SCC 794
referred to
Para 86
[2001] 5 Suppl. SCR 179
relied on
Para 87
[1990] 1 SCR 561
relied on
Para 88
[1997] 1 Suppl. SCR 671
referred to
Para 91
(2012) 12 SCC 419
referred to
Para 92
[2003] 1 Suppl. SCR 638
referred to
Para 92
[2009] 9 SCR 791
referred to
Para 92
[2011] 13 SCR 1077
referred to
Para 92
[1991] 1 Suppl. SCR 46
referred to
Para 95
[1963] Suppl. 1 SCR 439
relied on
Para 110
[1976] 1 SCR 906
referred to
Para 111
[2006] 7 Suppl. SCR 336
relied on
Para 112
[2010] 6 SCR 972
referred to
Para 114
[1964] 6 SCR 368
referred to
Para 116
[1985] 2 SCR 224
referred to
Para 118
[1966] Suppl. SCR 311
referred to
Para 121
[2018] 10 SCR 663
referred to
Para 123
[1992] 2 Suppl. SCR 454
followed
Para 137, 138
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 3609
of 2002.
From the Judgment and Order dated 23.11.2001 of the High Court
of Judicature, Andhra Pradesh at Hyderabad in Writ Petition No. 20239
of 2000.
With
C.A. No. 7040 of 2002.
CHEBROLU LEELA PRASAD RAO & ORS. v.
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Dr. 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 Kumar
Sharma, 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. Venkat
Palwai Law Associates, Advs. for the appearing parties.
The Judgment of the Court was delivered by
ARUN MISHRA, J.
1. In the 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.
2. Several questions have been referred for consideration in the
order dated 11.1.2016. We have renumbered question nos.1(a)(b)(c)
and (d) based on interconnection. The questions are as follows:
"(1) What is the scope of paragraph 5(1), Schedule V to the
Constitution of India?
(a) Does the provision empower the Governor to make a new
law?
(b) Does the power extend to subordinate legislation?
(c) Can the exercise of the power conferred therein override
fundamental rights guaranteed under Part III?
(d) Does the exercise of such power override any parallel exercise
of power by the President under Article 371D?
(2) Whether 100% reservation is permissible under the
Constitution?
(3) Whether the notification merely contemplates a classification
under Article 16(1) and not reservation under Article 16(4)?
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(4) Whether the conditions of eligibility (i.e., origin and cut-off
date) to avail the benefit of reservation in the notification are
reasonable?"
3. The facts in the backdrop project that by G.O.Ms. No.275 dated
5.11.1986, issued by the Governor in exercise of power under para 5(1)
of Schedule V to the Constitution of India, directing the posts of teachers
in educational institutions in the scheduled tribe areas shall be reserved
for Scheduled Tribes only notwithstanding anything contained in any other
order or rule or law in force. 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, which
was dismissed as withdrawn on 20.3.1998.
4. Another G.O.Ms. No.73 dated 25.4.1987 was issued to amend
GOMs. No.275 dated 5.11.1986 to allow the appointment of non-tribals
to hold the posts of teachers in the scheduled areas till such time the
qualified local tribals were not made available. After that, non-tribals
who were appointed as teachers in the scheduled areas filed Writ Petition
No.5276/1993 in the High Court of Andhra Pradesh at Hyderabad against
termination of their services. The same was allowed vide judgment and
order dated 5.6.1996 and GOMs. No.73 dated 25.4.1987, and the
advertisements were held to be violative of Article 14 of the Constitution
of India. In writ appeal, the order of the Single Bench was set aside by
the Division Bench vide judgment and order dated 20.8.1997. The decision
in W.P. No.16198/1988 thus prevailed. The non-tribal appointees
preferred Civil Appeal 6437/1998 before this Court, which was allowed
on 18.12.1998.
5. After this Court rendered the decision on 18.12.1998, the
Government issued a fresh notification vide GOMs. No. 3 dated 10.1.2000
effectively providing for 100% reservation in respect of appointment to
the posts of teachers in the scheduled areas. The tribunal set aside the
GOMs. Aggrieved thereby, writ petitions were filed in the High Court, a
3-Judge Bench by majority upheld the validity of G.O. Aggrieved by the
same, the appeals have been preferred.
6. The majority view opined that historically scheduled areas were
treated specially, and affirmative action taken was in the constitutional
spirit. The notification was a step for increasing literacy in the scheduled
areas and also aimed at providing the availability of teachers in every
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school in the scheduled areas. 100% reservation can be sustained on the
ground that it was based on intelligible differentia, and the classification
has nexus with the object sought to be achieved. The G.O. became
necessary considering the phenomenal absenteeism of the teachers in
the schools situated in the scheduled areas and was a step in aid to
promote educational developments of tribals. In extraordinary situations,
reservation can exceed 50%. The Governor possessed the power to
issue the impugned notification under Schedule V, para 5(1) of the
Constitution. 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%
reservation for Scheduled Tribes in scheduled areas offends the spirit of
Articles 14 and 16 of the Constitution of India. The Governor is not
conferred power to make any law in derogation to Part III or other
provisions of the Constitution of India in the exercise of his power under
Clause I, Para 5 of Schedule V. It was also held that G.O.Ms. No.3 is
discriminatory as the same adversely affects not only the open category
candidates but also other Scheduled Castes, Scheduled Tribes, and
backward classes. It also opined that the reservation under Article 16(4)
should not exceed 50%. However, little relaxation was permissible. The
rules made under Article 309 of the Constitution could not be treated as
an Act of Parliament or State Legislature.
8. G.O.Ms. No.3 dated 10.1.2000, validity of which is questioned,
reserved all posts in the educational institutions within the scheduled
areas in favour of the local Scheduled Tribes. The order is extracted
hereunder:
"Whereas, under sub-paragraph (1) of paragraph 5 of the Fifth
Schedule to the Constitution of India, the Governor of Andhra
Pradesh may by public notification direct that any particular Act
of Parliament or of Legislature of the State shall not apply to the
Scheduled Areas or any part thereof in the State or shall apply to
a scheduled area or any part thereof subject to specified exceptions
and modifications;
2. AND WHEREAS, in G.O.Ms.No.275, Social Welfare
Department dated 5.11.1986, a notification has been issued
exercising the powers conferred under sub-paragraph (1) of
paragraph 5 of the Fifth Schedule to the Constitution of India
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directing that the posts of teachers in the Educational Institutions
in the Scheduled Areas of State shall be filled in only by the local
members of the Scheduled Tribes;
3. AND WHEREAS, the Andhra Pradesh Administrative Tribunal
in its order dated 25.8.1989 in R.P.Nos.6377 and 6379 of 1988
quashed the orders issued in G.O.Ms.No.275, Social Welfare
Department dated 5.11.1986 on the ground that the notification
issued under sub-paragraph (1) of paragraph 5 of the Fifth
Scheduled to the Constitution of India does not reflect the existence
of either a State or a Central Legislation referable for issuing
such notification;
4. AND WHEREAS, the Division Bench of the High Court of
Andhra Pradesh in its judgement dated 20-8-1997 in Writ Appeal
No.874 of 1997 filed by the Project Officer, I.T.D.A.,
Rampachodayaram, East Godavari District, directed to continue
the petitioners respondents in their respective posts of teachers
without any break as temporary employees until replaced by the
qualified local tribals as and when such tribals are available to fill
up those posts;
5. AND WHEREAS, the Andhra Pradesh Administrative Tribunal
subsequentlywhile disposing of O.A.No.4598/97 in its order
dt.22.9.1997 directed the respondents to follow the statutory rules
while making recruitment to the posts of Secondary Grade
Teachers and also Telugu Pandits, Grade. I in Agency Areas
without taking into consideration of the orders issued in
G.O.Ms.No.275, Social Welfare Department, dated 5.11.1986.
6. AND WHEREAS, the Supreme Court of India while allowing
Civil Appeal No.6437/98 in its order dated 18th December 1998,
set aside the orders of the Andhra Pradesh Administrative Tribunal
on the ground that the State withdraw the appeals arising out of
the S.L.P. Nos.14562-63 of 1989:
7. AND WHEREAS, the Government considers that rule 4 (b) of
the Andhra Pradesh School Educational Subordinate Service Rules,
1992 and rule 22A of the Andhra Pradesh State and Subordinate
Service Rules, 1996 shall be modified to the extent that only
Scheduled Tribe Women shall be appointed in Scheduled Areas
against 33 1/3% reservation in respect of direct recruitment;
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8. AND WHEREAS, the consultation of the Tribes Advisory
Council has been made as required under sub-paragraph (5) of
paragraph 5 of the Fifth Schedule to the constitution of India.
9. AND WHEREAS, the Government of Andhra Pradesh in order
to strengthen the educational infrastructure in the Scheduled Areas,
to promote educational development of Tribals, to solve the
phenomenal absenteeism of Teachers in the Schools situated in
Scheduled Areas and with a view to protect the interests of local
tribals have decided to reserve the posts of teachers in favour of
local Scheduled Tribes candidates;
10. AND WHEREAS, the Government considered to re-issue
the said orders retrospectively from 5.11.1986 keeping in view
the provisions of sub-paragraph (1) of paragraph 5 of Fifth Schedule
to the Constitution;
11. The following notification will be published in part-IV-B
Extraordinary issue of the Andhra Pradesh Gazette, dated
10.1.2000.
NOTIFICATION
In exercise of the power conferred by subparagraph (1) of
paragraph 5 of the Fifth Schedule to the Constitution of India and
in Supersession of the notification issued in G.O.Ms.No.275, Social
Welfare Department, dated the 5th November 1986, as
subsequently amended in G.O. Ms. No.73, Social Welfare
Department, dated the 25th April 1988, the Governor of Andhra
Pradesh hereby directs that sections 78 and 79 of the Andhra
Pradesh 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 School
Educational Subordinate Service Rules issued in G.O.Ms.No.538
Education (Ser. II) Department, dated the 20th November 1998
and rule 22 and 22A of the Andhra Pradesh State and Subordinate
Service Rules, 1996 and any other rules made in this regard shall
apply to the appointment of posts of teachers in schools situated,
in the Scheduled areas in the State subject to the modification that
all the posts of teachers in the Schools situated in Scheduled Areas
in the State of Andhra Pradesh shall be filled in by the local
Scheduled Tribe candidates only out of whom 33 1/3% shall
women.
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EXPLANATION:- For the purpose of this notification, the 'Local
Scheduled Tribe Candidate' means, the candidate belonging to
the Scheduled Tribes notified as such under article 342 of the
Constitution of India and the candidates themselves or their parents
have been continuously residing in the scheduled areas of the
Districts in which they are residents till to date since the 26th
January 1950."
(emphasis supplied)
9. In the notification various provisions have been mentioned.
Section 78 of the A.P. Education Act, 1982 provides for the constitution
of educational service.