# SATYAJIT KUMAR & ORS v. THE STATE OF JHARKHAND & ORS

- **Citation:** [2022] 12 S.C.R. 873
- **Court:** Supreme Court of India
- **Decided:** 2022-08-02
- **Case number:** Civil Appeal No. 4038 of 2022
- **Bench:** M. R. Shah, B. V. Nagarathna
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/satyajit-kumar-ors-v-the-state-of-jharkhand-ors-35496
- **Pages:** 64

## Headnote

Constitution of India - Para 5(1) of Fifth Schedule; Articles
14, 13(2), 15, 16(2), (3), 35(a-i) - Whether in exercise of powers
conferred under paragraph 5(1) of the Fifth Schedule to the
Constitution, the Governor can make provisions for 100%
reservation in the scheduled Areas/Districts - Held: Non-obstante
clause contained in para 5(1) of the Fifth Schedule of the
Constitution shall be read with respect to power of the Governor to
suspend and/or modify the law made by the Parliament despite
Articles 244 and 245 of the Constitution of India - It cannot be
read as conferring upon the Governor absolute power and/or
unfettered power, notwithstanding the provisions contained in Part
III of the Constitution - In the present case, the impugned Order/
Notification providing 100% reservation for the local residents of
concerned Scheduled Districts/ Areas is beyond the scope and ambit
of powers conferred upon the Governor u/para 5(1) of the Fifth
Schedule of the Constitution - 100% reservation is violative of
Art.16(2) affecting rights of the other candidates/citizens of nonscheduled areas/Districts guaranteed under Part III of the
Constitution of India - No error committed by High Court in holding
the impugned Notification as unconstitutional and ultra vires to
paragraph 5(1) of the Fifth Schedule and also Articles 14, 13(2),
15 and 16(2) - It is also violative of Articles 16(3) and 35(a-i) -
However, on facts, instead of fresh/de novo recruitment process by
setting aside the appointments already made in the Scheduled
Districts/Areas, the State shall revise the merit list based on the
already published cut off obtained by the last selected candidates
in each TGT subject against the respective categories with respect
to entire State - Respective candidates belonging to the nonScheduled Areas and Scheduled Areas (Districts) be adjusted
accordingly on the basis of individual merit of the candidates -
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874
SUPREME COURT REPORTS
[2022] 12 S.C.R.
Jharkhand Government (Recruitment of Teachers and Non-Teaching
Staff in Secondary Schools & their Service and Condition) Rules,
2015 - Service Law - Constitution of India - Article 142.
Constitution of India - Para 5(1) of Fifth Schedule; Article
309 - Jharkhand Government (Recruitment of Teachers and NonTeaching Staff in Secondary Schools & their Service and Condition)
Rules, 2015 - Whether in exercise of powers under paragraph 5(1)
of the Fifth Schedule to the Constitution, the Governor has the power
to modify the relevant Recruitment Rules framed u/Article 309 -
Held: Exercise of powers by the Governor under para 5(1) of the
Fifth Schedule of the Constitution of India modifying Recruitment
Rules, 2015 which are framed u/Article which can be said to be
subordinate legislation and cannot be said to be an Act or the Law
made by the Parliament and / or State Legislature is beyond the
scope and ambit of Governor's power under para 5(1) of the Fifth
Schedule of the Constitution of India.
Constitution of India - Para 5(1) of Fifth Schedule - Powers
conferred upon the Governor - Exercise of - Scope and ambit of -
Discussed.
Constitution of India - Para 5 of Fifth Schedule, an exception
- Held: Law made by the Parliament is supreme and shall prevail
and every State/State Legislature is bound by the law made by the
Parliament - However, paragraph 5 of the Fifth Schedule to the
Constitution of India is an exception - Notwithstanding the aforesaid
provisions, giving supremacy to the law made by the Parliament,
the Governor may direct that any particular Act of Parliament or of
the Legislature of the State shall not apply to a Scheduled Area or
any part thereof in the State or shall apply to a Scheduled Area or
any part thereof in the State subject to such exceptions and
modifications as he may specify in the notification - Thus, the
expression "notwithstanding anything in this Constitution" is related
to the Constitutional provisions regarding the supremacy of the law
made by the Parliamen

## Text

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[2022] 12 S.C.R. 873
873
SATYAJIT KUMAR & ORS.
v.
THE STATE OF JHARKHAND & ORS.
(Civil Appeal No. 4038 of 2022)
AUGUST 02, 2022
[M. R. SHAH AND B. V. NAGARATHNA, JJ.]
Constitution of India - Para 5(1) of Fifth Schedule; Articles
14, 13(2), 15, 16(2), (3), 35(a-i) - Whether in exercise of powers
conferred under paragraph 5(1) of the Fifth Schedule to the
Constitution, the Governor can make provisions for 100%
reservation in the scheduled Areas/Districts - Held: Non-obstante
clause contained in para 5(1) of the Fifth Schedule of the
Constitution shall be read with respect to power of the Governor to
suspend and/or modify the law made by the Parliament despite
Articles 244 and 245 of the Constitution of India - It cannot be
read as conferring upon the Governor absolute power and/or
unfettered power, notwithstanding the provisions contained in Part
III of the Constitution - In the present case, the impugned Order/
Notification providing 100% reservation for the local residents of
concerned Scheduled Districts/ Areas is beyond the scope and ambit
of powers conferred upon the Governor u/para 5(1) of the Fifth
Schedule of the Constitution - 100% reservation is violative of
Art.16(2) affecting rights of the other candidates/citizens of nonscheduled areas/Districts guaranteed under Part III of the
Constitution of India - No error committed by High Court in holding
the impugned Notification as unconstitutional and ultra vires to
paragraph 5(1) of the Fifth Schedule and also Articles 14, 13(2),
15 and 16(2) - It is also violative of Articles 16(3) and 35(a-i) -
However, on facts, instead of fresh/de novo recruitment process by
setting aside the appointments already made in the Scheduled
Districts/Areas, the State shall revise the merit list based on the
already published cut off obtained by the last selected candidates
in each TGT subject against the respective categories with respect
to entire State - Respective candidates belonging to the nonScheduled Areas and Scheduled Areas (Districts) be adjusted
accordingly on the basis of individual merit of the candidates -
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874
SUPREME COURT REPORTS
[2022] 12 S.C.R.
Jharkhand Government (Recruitment of Teachers and Non-Teaching
Staff in Secondary Schools & their Service and Condition) Rules,
2015 - Service Law - Constitution of India - Article 142.
Constitution of India - Para 5(1) of Fifth Schedule; Article
309 - Jharkhand Government (Recruitment of Teachers and NonTeaching Staff in Secondary Schools & their Service and Condition)
Rules, 2015 - Whether in exercise of powers under paragraph 5(1)
of the Fifth Schedule to the Constitution, the Governor has the power
to modify the relevant Recruitment Rules framed u/Article 309 -
Held: Exercise of powers by the Governor under para 5(1) of the
Fifth Schedule of the Constitution of India modifying Recruitment
Rules, 2015 which are framed u/Article which can be said to be
subordinate legislation and cannot be said to be an Act or the Law
made by the Parliament and / or State Legislature is beyond the
scope and ambit of Governor's power under para 5(1) of the Fifth
Schedule of the Constitution of India.
Constitution of India - Para 5(1) of Fifth Schedule - Powers
conferred upon the Governor - Exercise of - Scope and ambit of -
Discussed.
Constitution of India - Para 5 of Fifth Schedule, an exception
- Held: Law made by the Parliament is supreme and shall prevail
and every State/State Legislature is bound by the law made by the
Parliament - However, paragraph 5 of the Fifth Schedule to the
Constitution of India is an exception - Notwithstanding the aforesaid
provisions, giving supremacy to the law made by the Parliament,
the Governor may direct that any particular Act of Parliament or of
the Legislature of the State shall not apply to a Scheduled Area or
any part thereof in the State or shall apply to a Scheduled Area or
any part thereof in the State subject to such exceptions and
modifications as he may specify in the notification - Thus, the
expression "notwithstanding anything in this Constitution" is related
to the Constitutional provisions regarding the supremacy of the law
made by the Parliament or State Legislature.
Service Law- Illegal and irregular appointment appointments
- Distinction between - Held: There is a distinction between illegal
and irregular appointment and the former cannot be regularized.
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Partly allowing the appeals, the Court
HELD: 1.1 As per Article 246(1), notwithstanding anything
contained in clauses (2) and (3), Parliament shall have exclusive
power to make laws with respect to any of the matters enumerated
in List I in the Seventh Schedule (Union List). As per Article
246(2), notwithstanding anything in clause (3), Parliament, and,
subject to clause (1), the Legislature of any State also shall have
power to make laws with respect to any of the matters enumerated
in List III in the Seventh Schedule (Concurrent List). As per
Article 254 of the Constitution of India, if any provision of law
made by the Legislature of a State is repugnant to any provision
of a law made by Parliament which Parliament is competent to
enact, or to any provision of an existing law with respect to one
of the matters enumerated in the Concurrent List, then, subject
to the provisions of clause (2), the law made by Parliament,
whether passed before or after the law made by the Legislature
of such State, or, as the case may be, the existing law, shall prevail
and the law made by the Legislature of the State shall, to the
extent of the repugnancy, be void. Thus, as per the aforesaid
Constitutional provisions, law made by the Parliament is supreme
and shall prevail and every State/State Legislature is bound by
the law. However, paragraph 5 made of by the the Fifth Schedule
to the Constitution of India is an exception. Notwithstanding the
aforesaid provisions, giving supremacy to the law made by the
Parliament, the Governor may direct that any particular Act of
Parliament or of the Legislature of the State shall not apply to a
Scheduled Area or any part thereof in the State or shall apply to a
Scheduled Area or any part thereof in the State subject to such
exceptions and modifications as he may specify in the notification.
Thus, the expression "notwithstanding anything in this
Constitution" is related to the Constitutional provisions regarding
the supremacy of the law made by the Parliament or State
Legislature. [Para 17.2][922-D-H; 923-A-D]
1.2 The non-obstante clause contained in para 5(1) of the
Fifth Schedule of the Constitution shall be read with respect to
power of the Governor to suspend and/or modify the law made by
the Parliament despite Articles 244 and 245 of the Constitution
SATYAJIT KUMAR & ORS. v. THE STATE OF JHARKHAND &
ORS.
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[2022] 12 S.C.R.
of India. It cannot be read as conferring upon the Governor
absolute power and/or unfettered power, notwithstanding the
provisions contained in Part III of the Constitution. The
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 a few. The citizens
have equal rights, and the total exclusion of others by creating
an opportunity for one class is not contemplated by the founding
fathers of the Constitution of India. [Paras 18.5 and 19][926-D-F,
G-H]
Indra Sawhney & Ors. v. Union of India & Ors. 1992
Supp (3) SCC 217 : [1992] 2 Suppl. SCR 454 -
followed.
1.3 Applying law laid down by the Constitution Bench of
this Court in the case of Chebrolu Leela Prasad Rao, to the facts
of the case on hand, the impugned Order/ Notification No.5938
and the Order No.5939 dated 14.07.2016 providing 100%
reservation for the local residents of concerned Scheduled
Districts/ Areas only can be said to be (1) beyond the scope and
ambit of powers conferred upon the Governor under para 5(1) of
the Fifth Schedule of the Constitution of India; (2) 100%
reservation provided for the local residents of the concerned
Scheduled Districts / Areas only would be violative of Article 16(2)
of the Constitution of India and affecting rights of the other
candidates / citizens of non-scheduled areas / Districts guaranteed
under Part III of the Constitution of India; (3) the exercise of
powers by the Governor under para 5(1) of the Fifth Schedule of
the Constitution of India modifying Recruitment Rules, 2015
which are framed under Article 309 of the Constitution of India
which can be said to be subordinate legislation and cannot be
said to be an Act or the Law made by the Parliament and / or
State Legislature is beyond the scope and ambit of Governor's
power under para 5(1) of the Fifth Schedule of the Constitution
of India. [Para 20][928-D-H; 929-A]
Chebrolu Leela Prasad Rao & Ors v. State of A.P. &
Ors. (2021) 11 SCC 401 - followed.
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1.4 What is required to be considered is the ratio decidendi
and law laid down by this Court. There is clear law laid down by
Constitution Bench of this Court. The decision of the Constitution
Bench which is rendered after considering the relevant
constitutional provisions and a number of decisions of this Court
is as such binding on this Court. It cannot be said that the relevant
Constitutional provisions and/or binding decisions of this Court
have not been dealt with and/or considered by this Court. The
Constitutional Bench decision of this Court in the case of Chebrolu
Leela Prasad Rao also cannot be said to be per incuriam ignoring
and/or taking a contrary view than any of the binding decision of
this Court. This Court is bound by the law laid down by this Court,
more particularly, a Constitution Bench decision of this Court.
There is no reason not to follow the binding Constitution Bench
decision of this Court in the case of Chebrolu Leela Prasad Rao.
There is no reason to take a different view than the view taken
by the Constitution Bench of this court in the case of Chebrolu
Leela Prasad Rao. [Para 21][929-C-F]
1.5 It may be true that so far as basic education (at the
level of primary section) is concerned, it may help student at the
primary level (while providing basic education) to be taught in
their own tribal language. But the same principle may not be
applicable when question is of providing education at higher level
viz. above 5th standard. Therefore, if the candidates belonging
to other areas (non-Scheduled Areas/ Districts) are given an
opportunity to impart education (who may be more meritorious
than the candidates belonging to the Scheduled Areas / Districts)
than it will be more beneficial to the students belonging to the
Scheduled Areas and their quality of the education shall certainly
improve. The quality of education of the school-going children
cannot be compromised by giving 100% reservation in favour of
the teachers of the same/some districts and prohibiting the
appointment to more meritorious teachers. At this stage, it is
required to be noted that even the impugned Order/Notification
dated 14.07.2016 and the advertisement providing 100%
reservations for local residents of concerned Scheduled Areas/
Districts can be said to be violative of Article 13 of the Constitution
of India also. The impugned Order/Notification making 100%
SATYAJIT KUMAR & ORS. v. THE STATE OF JHARKHAND &
ORS.
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SUPREME COURT REPORTS
[2022] 12 S.C.R.
reservation for the local resident of the concerned Scheduled
Districts/Areas is violative of Article 16(2) of the Constitution of
India as it affects the fundamental rights guaranteed to the
candidate belonging to the non-Scheduled Areas guaranteed
under part III of the Constitution of India. As per Article 13 of
the Constitution of India, the State shall not make any law which
takes away or abridges the rights conferred by this Part and any
law made in contravention of Article 13(2) shall to the extent of
the contravention, be void. Therefore, also impugned Notification/
Order/Advertisement making 100% reservation for the local
resident of the concerned Scheduled Areas / Districts shall be
ultra vires Article 13 of the Constitution of India and shall be
void. [Paras 22.1 and 23][930-H; 931-A-C]
1.6 Even under Article 16(3) of the Constitution of India, it
is the Parliament alone, which is authorized to make any law
prescribing, in regard to a class or classes of employment or
appointment to an office under the Government of, or any local
or other authority within, a State of Union Territory, any
requirement as to residence within the State or Union territory
prior to such employment or appointment. As per Article 35 of
the Constitution of India, notwithstanding anything contained in
the Constitution, the Parliament shall have and the Legislature
of a State shall not have the power to make laws with respect to
any of the matters which, under clause (3) of Article 16 may be
provided for law made by Parliament. Therefore, impugned
Notification/Order making 100% reservation for the local resident
of the concerned Scheduled Area/Districts (reservation on the
basis of resident) is ultra vires to Article 35 r/w Article 16(3) of
the Constitution of India. [Para 24][931-F-H; 932-A-B]
1.7 Applying the law laid down by this Court in the case of
Chebrolu Leela Prasad Rao and in view of the above discussion
and for the reasons stated above, the High Court has not
committed any error in concluding and holding that the
Notification No.5938 and Order No.5939 dated 14.7.2016 issued
by the State Government providing 100% reservation for the
local residents of concerned Scheduled Districts/Areas as being
unconstitutional and ultra vires Articles 14, 13(2), 15 and 16(2)
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of the Constitution of India. It is rightly observed and held that
said Notification and Order would also violate Articles 16(3) and
35(a-i) of the Constitution of India. The High Court has also
rightly observed and held that aforesaid Notification and Order
is ultra vires to paragraph 5(1) of the Fifth Schedule of the
Constitution of India. This Court is in complete agreement with
the view taken by the High Court. Once the Notification/Order
dated 14.07.2016 are held to be ultra vires, as a necessary
consequences, appointments made pursuant to such
unconstitutional Notification/Order shall have to be set aside and
such appointments as such cannot be regularized. There is a
distinction between illegal and irregular appointment and the
former cannot be regularized. [Para 25][932-B-D]
1.8 In the present case, impugned Notification / Order is of
the year 2016. The TGT recruitment process was initiated vide
advertisement dated 28.12.2016 as modified on 04.02.2017 and
same came to be challenged during the pendency of the
recruitment process in the year 2017 itself. It is also required to
be noted that by order dated 21.2.2019 the Division Bench of the
High Court directed that notice be published in the daily
newspapers having wide circulation about institution of the writ
petition so that the person interested may intervene in the writ
petition. Pursuant to such notice, several interlocutory
applications/intervener applications came to be filed, which came
to be allowed by the High Court. Thereafter, by order dated
18.09.2019, taking into consideration the question of
Constitutional importance involved in the matters, the Division
Bench of the High Court referred the matter to be decided by a
Larger Bench. By the same order dated 18.09.2019, the High
Court stayed the further implementation and operation of the
impugned Notification No.5938 and Order No.5939 dated
14.7.2016, subject to the appointments already made, if any. Thus,
from the aforesaid it can be seen that the original writ petitioners
are always vigilant and diligent and approached the High Court
at the first available opportunity. Their valuable right for
consideration of their cases for appointment in the Scheduled
Districts / Areas have been taken away. They have been
successful before the High Court. Therefore, in the facts and
SATYAJIT KUMAR & ORS. v. THE STATE OF JHARKHAND &
ORS.
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SUPREME COURT REPORTS
[2022] 12 S.C.R.
circumstance of the case, the decision relied upon on behalf of
the appellants to make impugned judgment and order passed by
the High Court prospectively shall not be applicable to the facts
of the case on hand. In the facts and circumstances of the case,
the prayer on behalf of the appellants herein to make the impugned
judgment and order passed by the High Court applicable
prospectively, deserves to be rejected and is accordingly rejected.
[Para 26.3][933-F-H; 934-A-C]
Kailash Chand Sharma v. State of Rajasthan & Ors.
(2002) 6 SCC 562 : [2002 1 Suppl. SCR 317 - held
inapplicable.
1.9 However, at the same time and in the facts and
circumstances of the case and more particularly, by quashing and
setting aside the appointments already made there is a likelihood
of more complication which would not be in the larger public
interest. Hence, this is a fit case to mould the relief. Apart from
the fact that the appellants herein - selected candidates belonging
to the Scheduled Districts/Areas are already working since last
about three years, in case appointments already made are not
protected then thousands of schools in the State of Jharkhand
would be without teachers and the ultimate sufferers would be
the children of tribal areas. In view of the impugned judgment
and order passed by the High Court, by which, the High Court
has held all the appointments made in Scheduled Districts/Areas
illegal and has further directed to go for fresh recruitment, the
State will have to undergo fresh recruitment process which may
take considerable time and, in the meantime, there shall be
vacancies and number of schools in the tribal areas shall be without
teachers. Therefore, the Court has to strike a balance between
the rights of the original writ petitioners as well as persons/
teachers already appointed (whose appointments are held to be
illegal) and also the public interest. Hence, while moulding the
relief, instead of initiating a fresh recruitment process, if directions
are issued for preparation of fresh selection list based on revised
merit and based on already published cut off obtained by the last
selected candidate in each TGT subject against respective
categories., it will meet ends of justice and striking the balance
between the competing rights so that persons already appointed
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may not have to lose their employment/job and at the same time
the candidates belonging to the non-Scheduled Districts/Areas
may also get their opportunity for appointment as a teacher on
merits in the Scheduled Districts/Areas. No useful purpose will
be served to go in for fresh/de novo recruitment process as
directed by the High Court in the impugned judgment and order.
In view of the above discussion and for the reasons stated above,
the common impugned judgment and order passed by the High
Court declaring the impugned Notification/Order dated
14.07.2016 as unconstitutional and ultra vires Articles 14, 16(2),
16(3) and 35(a-i) of the Constitution of India is upheld. This Court
is in complete agreement with the view taken by the High Court.
However, at the same time, the directions issued by the High
Court in the impugned judgment and order while setting aside
all the appointments made pursuant to the Notification / Order
dated 14.07.2016 and Advertisement No.21 of 2016 dated
28.12.2016 as modified on 04.12.2017 and to go in for fresh/de
novo recruitment process for the Scheduled Areas/Districts is
hereby modified. It is now directed that instead of fresh/de novo
recruitment process by setting aside the appointments already
made in the Scheduled Districts/Areas, the State shall revise the
merit list based on the already published cut off obtained by the
last selected candidates in each TGT subject against the
respective categories with respect to entire State and respective
candidates belonging to the non-Scheduled Areas and Scheduled
Areas (Districts) shall be adjusted accordingly on the basis of
individual merit of the candidates. The present directions are
issued considering the peculiar facts and circumstances of the
case and more particularly considering the fact that there are
already vacant posts of teachers in the State (in both Scheduled
and non-Scheduled Area). If the appointments already made are
set aside and fresh de novo recruitment process for such posts
is initiated, a number of schools in the Scheduled Areas shall be
without any teacher which may ultimately affect larger public
interest and education of concerned children in the Scheduled
Areas. Present direction is issued in exercise of powers under
Article 142 of the Constitution of India in the larger public interest
of Scheduled Areas/Districts. [Paras 27 and 28][934-D-H; 935A-H; 936-A]
SATYAJIT KUMAR & ORS. v. THE STATE OF JHARKHAND &
ORS.
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SUPREME COURT REPORTS
[2022] 12 S.C.R.
Secretary, State of Karnataka and Ors. v. Umadevi (3)
and Ors. (2006) 4 SCC 1 : [2006] 3 SCR 953 - relied
on.
A.V.S Narsimha Rao & Ors v. State of Andhra Pradesh
& Anr. (1969) 1 SCC 839 : [1970] 1 SCR 115; Dr.
Pradeep Jain & Ors v. Union of India & Ors. (1984) 3
SCC 654 : [1984] 3 SCR 942; Rajesh Kumar Gupta &
Ors. v. State of UP & Ors. (2005) 5 SCC 172 : [2005]
3 SCR 1171; State of Orissa & Ors. v. Sudhir Kumar
Bishwal & Ors. (1994) Supp 3 SCC 245 : [1994]
2 Suppl. SCR 665; AVS Narasimha Rao and Ors. v. The
State of A.P. [1970] 1 SCR 115; Kripal Bhagat v. State
of Bihar [1970] 3 SCR 233 Puranlal Lakhanpal v.
President of India AIR 1961 SC 1519 : [1962] 1 SCR
688; Kesavananda Bharati v. State of Kerala (1973) 4
SCC 225 : [1973] Suppl. SCR 1; Dr. Jaishri Laxmanrao
Patil v. Chief Minister 2021 SCC Online SC 362 P.
Rajendran v. State of Madras [1968] 2 SCR 786; N.
Vasundhara v. State of Mysore (1971) 2 SCC 22;
Jayshree v. State of Kerala (1976) 3 SCC 730 : [1977]
1 SCR 194; Hanuman Dutt Shukla v. State of Uttar
Pradesh (2018) 16 SCC 447; K Madhav Reddy v. State
of A.P (2014) 6 SCC 537 : [2014] 7 SCR 348; R.K.
Sabharwal v. State of Punjab (1995) 2 SCC 745 : [1995]
2 SCR 35; Baburam V.CC Jacob (1999) 3 SCC 362;
Union of India and Anr. v. Tulsiram Patel (1985) 3
SCC 398 : [1985] 2 Suppl. SCR 131; J K Spinning
and Weaving Mills Co. Ltd v. State of UP AIR 1961
SC 1170 : [1961] 3 SCR 185; Anupal Singh v. State
of UP (2020) 2 SCC 173 : [2019] 12 SCR 1071; State
of UP and Ors. v. Anand Kumar Yadav and Ors. (2018)
13 SCC 560 : [2017] 10 SCR 428; Renu v. District &
Sessions Judge (2014) 15 SCC 731; State of MP v.
Dharam Bir (1998) 6 SCC 165 : [1998] 3 SCR 511;
Syed Khalid Rizvi and Ors. v. Union of India and Ors.
1993 Supp. (3) SCC 575 : [1992] 3 Suppl. SCR 180;
A
B
C
D
E
F
G
H
883
Surajprakash Gupta and Ors. v. State of J & K and
Ors. (2000) 7 SCC 561 : [2000] 3 SCR 807; R.S. Garg
v. State of UP and Ors. (2006) 6 SCC 430 : [2006]
4 Suppl. SCR 120; Rajesh Kumar v. State of Bihar
(2013) 4 SCC 690 : [2013] 4 SCR 753; Ran Vijay Singh
v. State of UP (2018) 2 SCC 357 : [2017] 12 SCR 95;
Waman Rao v. Union of India (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; S.R. Chaudhuri
v. State of Punjab (2001) 7 SCC 126 : [2001] 1 Suppl.
SCR 621; Ajay Hasia V.Khalid Mujib Sehravadi (1981)
1 SCC 722 : [1981] 2 SCR 79; E.P. Royappa v. State of
Tamil Nadu (1974) 2 SCC 3 : [1974] 2 SCR 348;
Maneka Gandhi v. Union of India (1978) 1 SCC 248 :
[1978] 2 SCR 621; Ramana Dayaram Shetty v.
International Airport Authority of India and Ors. (1979)
3 SCC 489 : [1979] 3 SCR 1014; Neelima Misra v.
Harinder Kaur Paintal (1990) 2 SCC 746 : [1990]
2 SCR 84; Peerless General Finance and Investment
Co. Ltd v. Reserve Bank of India (1992) 2 SCC 343 :
[1992] 1 SCR 406 - referred to.
Case Law Reference
[2002] 1 Suppl. SCR 317
held inapplicable
Para 3.8
[1970] 1 SCR 115
referred to
Para 3.8
[1984] 3 SCR 942
referred to
Para 3.8
[2005] 3 SCR 1171
referred to
Para 3.8
[1994] 2 Suppl. SCR 665
referred to
Para 3.8
[1992] 2 Suppl. SCR 454
followed
Para 3.8
(2021) 11 SCC 401
followed
Para 3.8
[1970] 1 SCR 115
referred to
Para 7.7
[1970] 3 SCR 233
referred to
Para 7.9
[1962] 1 SCR 688
referred to
Para 7.9
[1973] Suppl. SCR 1
referred to
Para 7.13
SATYAJIT KUMAR & ORS. v. THE STATE OF JHARKHAND &
ORS.
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[1968] 2 SCR 786
referred to
Para 8.2
(1971) 2 SCC 22
referred to
Para 8.3
[1977] 1 SCR 194
referred to
Para 8.3
(2018) 16 SCC 447
referred to
Para 10
[2014] 7 SCR 348
referred to
Para 11.1
[1995] 2 SCR 35
referred to
Para 11.1
(1999) 3 SCC 362
referred to
Para 11.1
[1985] 2 Suppl. SCR 131
referred to
Para 12.3
[1961] 3 SCR 185
referred to
Para 12.5
[1994] 2 Suppl. SCR 665
referred to
Para 13.4
[1970] 1 SCR 115
referred to
Para 13.5
[2005] 3 SCR 1171
referred to
Para 13.5
[1984] 3 SCR 942
referred to
Para 13.7
[2019] 12 SCR 1071
referred to
Para 13.9 (I)
[2017] 10 SCR 428
referred to
Para 13.9 (II)
(2014) 15 SCC 731
referred to
Para 13.9( III)
[1998] 3 SCR 511
referred to
Para 13.9 (IV)
[1992] 3 Suppl. SCR 180
referred to
Para 13.9 (V)
[2000] 3 SCR 807
referred to
Para 13.9 (VI)
[2006] 4 Suppl. SCR 120
referred to
Para 13.9 (VII)
[2006] 3 SCR 953
relied on
Para 13.9 (VIII)
[2013] 4 SCR 753
referred to
Para 13.9
[2017] 12 SCR 95
referred to
Para 13.10
[1973] Suppl. SCR 1
referred to
Para 18.4
[1981] 2 SCR 1
referred to
Para 18.4
[2007] 1 SCR 706
referred to
Para 18.4
[2001] 1 Suppl. SCR 621
referred to
Para 18.4
[1981] 2 SCR 79
referred to
Para 18.4
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[1974] 2 SCR 348
referred to
Para 18.4
[1978] 2 SCR 621
referred to
Para 18.4
[1979] 3 SCR 1014
referred to
Para 18.4
[1990] 2 SCR 84
referred to
Para 18.4
[1992] 1 SCR 406
referred to
Para 18.4
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 4038
of 2022.
From the Judgment and Order dated 21.09.2020 of the High Court
of Jharkhand at Ranchi in Writ Petition (C) No.1387 of 2017.
With
Civil Appeal Nos.4039, 4040, 4041, 4042, 4043, 4044, 4045, 4046,
4047, 4048, 4049, 4050 and 4079 of 2022.
Vikas Singh, Rajeev Dhavan, R. Venkataramani, P.S. Patwalia,
Ms. Vibha Datta Makhija, Kapil Sibal, Sunil Kumar, Arunabh Chowdhury,
Gopal Sankaranarayanan, Ajit Kumar Sinha, Mrs. V. Mohana, Colin
Gonsalves, Pallav Shishodia, Ranjit Kumar, Sr. Advs., Prashant Shukla,
Suyash Srivastava, Ms. Shreya Mishra, Praveen Gaur, Karan Mamagain,
Prakhar Srivastava, Chitwan Singhal, Praveen Vivnesh, Ms. Pratibha
Shukla, Satyajeet Kumar, Ms. Pragya Baghel, Vishnu Sharma, Kumar
Anurag Singh, Kumar Abhishekh, Shashank, Ms. Pallavi Langar, Mithilesh
Kumar Singh, Mrs. Manju Singh, Tarun Verma, Raj Mani Mishra, Kabir
Dixit, Amit Agrawal, Vigyaan Shah, Ms. Radhika Yadav, Akshit Gupta,
Harinder Neel, Ms. Rohini Prasad, Puneet Jain, Vigyan Shah, Ms. Christi
Jain, Ms. Shruti Singh, Akshit Gupta, Umang Mehta, Yogit Kamat,
Kamalesh Sharma, Harender Neel, Pukhraj Chawla, Mann Arora, Yash
Joshi, Ms. Sarah Sharma, Ms. Pragya Sethi, Anubhav Kumar for M/s.
Manoj Swarup And Co., Vikram Singh Kushwaha, Roopenshu Pratap
Singh, Vikas Gothwal, Surjeet Singh, Vishwa Pal Singh, D.D.Sharma,
Sunil Kumar Pandey, Mohan Lal Sharma, K. Parameshwar, Priyank
Upadhyay, Krishna Kumar Singh, Sahil Bhalaik, Ms. Shomila Bakshi,
Govind Jee, Omanakuttan K. K., Prashant Bhushan, Ms. Alice Raj,
Brajesh Pandey, Anilendra Pandey, Chetan Joshi, Siddharth Seem,
Sandeep Kumar Dwivedi, Ms. Savitri Verma, Rakesh Mishra, Ravi
Chandra Prakash, Purushottam Sharma Tripathy, Lalit Kr. Singh, Vigyaan
Shah, Mukesh Kumar Singh, Ms. Vani Vyas for M/s Ravi Chandra
SATYAJIT KUMAR & ORS. v. THE STATE OF JHARKHAND &
ORS.
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Prakash & Co., Hitesh Kumar Sharma, S.K. Rajora, Akhileshwar Jha,
E. Vinay Kumar, Advs. for the appearing parties.
The Judgment of the Court was delivered by
M. R. SHAH, J.
1.0. 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,
the High Court has allowed said writ petitions and has observed, held
and declared that the Notification No.5938 and the Order No.5939 dated
14.07.2016 issued by the State of Jharkhand and Advertisement No.21
of 2016 dated 28.12.2016 modified by the Advertisement No.21 of 2016
published on 04.12.2017, by the State Government through Department
of Personnel, Administrative Reforms and Rajbhasha inviting application
for appointment to the posts of Trained Graduate Teacher in the
Government Secondary Schools to the extent of making 100% reservation
for the local candidates / residents of Thirteen Scheduled Areas in the
State of Jharkhand as illegal, ultra vires and unconstitutional and
consequently has quashed the appointments of the Trained Graduate
Teachers made pursuant to the aforesaid advertisement, in the Scheduled
Districts relating to the local residents of those Districts, the original
respondents - candidates belonging to the Thirteen Scheduled Districts
have preferred present appeals.
2.0. Civil Appeal No.4043 of 2022 has been preferred by the
petitioners who were not party before the High Court challenging the
action of the State Government in not appointing them. It is the case on
behalf of the petitioners that the State Government has misinterpreted
the judgment and order passed by the High Court passed in Writ Petition
No.1387 of 2017. It is their case that the dispute before the High Court
was with regard to the appointment of the Trained Graduate Teachers
and advertisement Notification No.21 of 2016. However, so far as
petitioners are concerned, according to them, they are eligible applicants
of the advertisement nos.1 of 2017 and 2 of 2017 for the post of Lower
Divisional Clerks (Collectorate cadre) - District Level Post Panchayat
Secretary- District Level Posts and Lower Divisional Clerks- State Level
Post, State Stenographer - State Level Post and in no manner concerned
with the issue agitated before the High Court. It is the case on behalf of
the petitioners that they are awaiting the final results with respect to the
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aforesaid posts and have also undergone document verification procedure
carried out by the Jharkhand Staff Selection Committee in the year 2019.
2.1. Civil Appeal No.4048 of 2022 has been preferred by the State
of Jharkhand challenging the order passed by the High Court dated
4.3.2022 passed in Contempt Case No. 109 of 2021. It is to be noted
that Civil Appeal No.4048 of 2022 is with respect to the candidates
belonging to the Non-Scheduled Districts who earlier filed writ petitions
before the High Court and the High Court directed to issue appointments
orders to the candidates belonging to the Non-Scheduled Districts. It is
required to be noted that by the interim order passed by the High Court
further contempt proceedings before the High Court have been stayed.
2.2. Civil Appeal No.4050 of 2022 has been preferred by the
candidates belonging to the Scheduled Districts and who applied as a
Trained Teacher pursuant to the aforesaid advertisement and who are
not appointed after interim order passed by the High Court dated
18.09.2019.
3.0. Facts leading to the present appeals in a nutshell are as under:
3.1. Pursuant to the Presidential Notification dated 11.04.2007 13
Districts in the State of Jharkhand had been declared as Scheduled
Areas. That the said Notification had been issued in exercise of powers
conferred by the sub-paragraph (2) of paragraph 6 of the Fifth Schedule
to the Constitution of India. Pursuant to the said Notification, following
Districts in the State of Jharkhand had been declared as Scheduled Areas
/ Districts.
1.
Ranchi District.
2.
Lohardagga District.
3.
Gumla District.
4.
Simdega District.
5.
Latehar District.
6.
East-Singhbhum District.
7.
West-Singhbhum District.
8.
Saraikela- Kharsawan District.
9.
Sahebganj District.
SATYAJIT KUMAR & ORS. v. THE STATE OF JHARKHAND &
ORS. [M. R. SHAH, J.]
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10.
Dumka District.
11.
Pakur District.
12.
Jamtara District.
13.
Palamu District- Rabda and Bakoriya Panchayats of
Satbarwa Block.
14.
Godda District- Sunderpahari and Boarijor Blocks.
(hereinafter referred to as the "Scheduled Areas").
3.2. That the State Government issued "Jharkhand Government
(Recruitment of Teachers and Non-Teaching Staff in Secondary Schools
& their Service and Condition) Rules, 2015 by means of which the
conditions / qualifications for appointment of teachers had been
prescribed, vide Notification dated 1.3.2016.
That pursuant to the order passed by the High Court in Writ Petition
(PIL) No. 4806 of 2016, vide Circular dated 18.04.2016 the State
Government prescribed definition of "Local Resident of Jharkhand". As
per the said Circular, the Local Resident of Jharkhand would be deemed
such Indian Citizens who would fulfill any one condition out of the
following .......
"(i) .he would have been residing within the geographical
limits of the State of Jharkhand and either his own name or
name of his forefather would have been lying recorded in
Survey Khata. In the cases of landless, he would be identified
by the concerning Gram Sabha which would be based on
language, culture & traditions prevailing in the State of
Jharkhand.
(ii) would have been residing within the geographical limits
of the State of Jharkhand for the past 30 years or more due
to any trade, employment and other reasons and would have
earned immovable property or such person has wife/husband
/child and affirm commitment to stay in Jharkhand State.
(iii) would have been appointed & working officer/employee
under the Government of State of Jharkhand / institutions
being run/recognized by the State Government, Corporation
etc. Or has wife/husband /child and affirm commitment to stay
in Jharkhand state.
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(iv) Officer/employee of the Government of India, working in
the State of Jharkhand or have 188 wife/husband /child and
affirm commitment to stay in Jharkhand state.
(v) Person appointed at any constitutional or statutory posts
in the State of Jharkhand or have wife/husband /child and
affirm commitment to stay in Jharkhand state.
(vi) Such person who would have born in the State of
Jharkhand and completed his whole education upto
Matriculation or its equivalent level from the recognized
institutions established in the state of Jharkhand & affirm
commitment to stay in Jharkhand state."
3.3. That thereafter, the State Government came out with
Notification No. 5938 and Order No. 5939 dated 14.7.2016 directing
that in Thirteen Scheduled Districts of the State, the local residents of
the concerned Districts (Thirteen Scheduled Districts) only shall be eligible
to be appointed on the District Cadre Class III and Class IV posts, for a
period of ten (10) years from the date of publication of the Notification.
It appears that said order had been issued by the Governor of Jharkhand
in exercise of powers conferred under sub-paragraph(1) of paragraph 5
of the Fifth Schedule of the Constitution of India. In the order dated
14.07.2016 it is observed as under:
"And whereas, the scheduled Area in the State are
characterised by low Human Development Indices,
backwardness, remoteness poverty and whereas the social
indicators of the Scheduled Areas are on an average, inferior
to the average of social indicators in the State due to uneven
topography, lack of water resources, loss in canopy coverage
of forest and uncontrolled rapid industrialization;
And whereas, recognizing the factors identified above, the
Tribal Advisory Council of Jharkhand has recommended
issuing of a notification by the Governor for suspension of
eligibility conditions as enshrined in various appointment rules
for the appointment of class 3 and class 4 posts at district
level for a period of 10 years in the 13 districts namelySahebganj, Pakur, (Dumka, Jamtara, Latehar, Ranchi, Khunti,
Gumla, Lohardagga simdega, East Singhbhum, West
Singhbhum and Sraikela-kharsawan for appointment of centSATYAJIT KUMAR & ORS. v. THE STATE OF JHARKHAND &
ORS. [M. R. SHAH, J.]
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percent District level class -3 and class-4 posts by the local
residents of the district concerned;
And Whereas, the Governor of Jharkhand in order to improve
the quality of people in the Scheduled Areas, by providing
additional opportunities of employment, in favour of the local
residents of Scheduled Areas."
3.4. That thereafter, further order came to be published on
11.11.2016 specifically making it clear that in compliance of Notification
No.5938 dated 14.07.2016, local residents of concerned Districts only
are deemed eligible for appointment in the vacant post of District- Level
Class III and Class IV in 13 notified Districts out of 24 Districts of the
State and appointment of people from other Districts/ other States is not
permissible in these Districts. Meaning thereby, it was made clear that
the candidate belonging to the Non-Scheduled Districts cannot participate
in the process of selection in the Scheduled Districts.
3.5. That pursuant to the advertisement no. 21 of 2016 published
on 28.12.2016 as modified by advertisement dated 4.2.2017 which was
issued in pursuance of the Notification No.5938 dated 14.07.2016,
applications were invited for filling up 17,784 Trained Graduate Teachers
out of which 13,398 posts (75% posts of total advertised posts) were to
be filled up by direct recruitment and remaining 25% posts i.e., 4386
posts were reserved for primary teachers. The said advertisement was
issued through Jharkhand State Staff Selection Commission (hereinafter
referred to as the "JSSC"). In the advertisement in para 5(iii), it was
stated that so far as vacancies in the Scheduled Districts and State are
concerned, only the local residents of those Scheduled Districts shall be
entitled to apply. As per the para 5(i) of the advertisement, a candidate
could apply against the vacancy in only one District of his / her choice.
At this stage, it is required to be noted that in all 8423 posts were
advertised for filling up the vacancies in the Thirteen Scheduled Districts
in the State, whereas 9149 posts were advertised for the remaining nonscheduled districts in the State.
3.6. Several candidates applied for the posts and undergone the
selection process. The results were published and process of
appointments were initiated by the State Government. Candidates
belonging to the Non-Scheduled Districts who were prevented making
application for the vacancy in the Scheduled Districts, preferred writ
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petition before the High Court by way of present writ petition challenging
the constitutional validity of the Notification and order issued by the
State Government bearing Notification No. 5938 and Order No.5939
dated 14.07.2016, by which, only the local residents of the concerned
Scheduled Districts were made eligible for appointment on the District
Cadre Class III and Class IV posts for a period of 10 years. The original
writ petitioners- candidates belonging to the Non-Scheduled Candidates
also challenged the subsequent Advertisement No.21 of 2016, as modified
by the Advertisement No.21 of 2016, inviting applications for appointment
to the posts of Trained Graduate Teacher in the Government Secondary
Schools more particularly, para 5(iii) of the said advertisement by which,
it was stated that the so far as vacancies in the Scheduled Districts of
the State are concerned, only the local residents of those Scheduled
Districts shall be eligible to apply.
3.7.