SC On 100% Reservation
   Date :27-Apr-2020


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By Adv. R. S. Agrawal
 
The (Reservation) lists can be done presently without disturbing the percentage of reservation so that benefits trickle down to the needy and are not usurped by those classes who have come up after obtaining the benefits for the last 70 years or after inclusion in the list. 
 
 
A 5-judge bench of the Supreme Court, consisting of Justice Arun Mishra, Justice Indira Banerjee, Justice Vineet Saran, Justice M.R.Shah and Justice Aniruddha Bose, at the Supreme Court, have answered a Reference on April 22, 2020 in the case – Chebrolu Leela Prasad Rao & Others v. State of Andhra Pradesh & Others with much needed plain speaking.
 
The Court placed its seal of approval on the contention urged by senior counsel Dr. Rajeev Dhawan that the State Govt. is required to revise the (Reservation) lists. It can be done presently without disturbing the percentage of reservation so that benefits trickle down to the needy and are not usurped by those classes who have come up after obtaining the benefits for the last 70 years or after inclusion in the list. The Government is duty-bound to undertake such an exercise as observed in the judgment of the case – Indra Sawhney & Others v. Union of India & Others – (1992) Supp. 3 SCC 217 and as constitutionally envisaged. The Court has directed the Government to take appropriate steps in this regard. In the Reference, the validity of the Government Office Ms. No. 3 of January 10, 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 was under challenge. The Andhra Pradesh Administrative Tribunal quashed the notification through its order of August 25, 1989.
 
The said order was questioned in the Supreme Court and the related civil appeal was dismissed as withdrawn on March 25, 1998. After the Supreme Court’s decision of December 18, 1998 in a subsequent round of litigation on this subject, the Government issued a fresh notification on January 10, 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 HC. A 3-judge bench of the HC by majority upheld the validity of G.O. Aggrieved by the same, these appeals were preferred.
 
 
The majority view at the HC opined that 100% reservation was based on intelligible differentia and the classification has nexus with the object sought to be achieved. In extra-ordinary situations, reservation can exceed 50%. The Governor has 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. The minority view in the HC judgment was that providing 100% reservation offends the spirit of Articles 14 and 16 of the Constitution.
 
The Governor does not have power to make any law in derogation to Part III or other provision of the Constitution in the exercise of his power under Clause I, Para 5 of the Schedule V. It was also held that GOM No. 3 is discriminatory as the same adversely affects not only the open category candidates but also other SCs, STs and Backward Classes. Reservation under Article 16(4) should not exceed 50%. However, little relaxation was permissible. Questions in Reference SC’s answer to Q.No. 1: The Governor can direct in exercise of his powers under Para 5(1), Fifth Schedule of the Constitution, concerning any particular Act of the Parliament or the legislature of the State that such law shall not apply to the Scheduled Areas or any part thereof in the State subject to such exceptions and modifications as he/she may specify in the notification and can also issue a notification with retrospective effect.
 
 
Answer to
Q. 1 (a) : 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.
 
Answer to Q. 1(b): 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.
 
Answer to Q.1(c): The Governor’s power under Para 5(1) , 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 the law and cannot override the fundamental rights guaranteed under Part III of the Constitution.
 
Answer to Q. 1(d) : While exercising this power, the Governor cannot override the notification issued by the President in the exercise of power under Article 371D. The power has to be exercised harmoniously with such an order issued under Article 371D, not in conflict thereof. Answer to Q. 2: GOMs 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 the Indra Sawhney judgment.
 
Answer to Q. 3: 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.
 
Answer to Q. 4: The conditions of eligibility in the notification with a cut-off date, that is 26.1.1950, to avail the benefits of reservation is unreasonable and arbitrary one. As a sequel to the quashing of GOMs No. 3 of 2000, the appointments made in excess of the permissible reservation cannot survive and should be set aside. However, on behalf of State and other respondents, it was urged that appointments may not be set aside. In the peculiar circumstances, the incumbents, who have been appointed, cannot be said to be at fault and they belong to Scheduled Tribes. The Supreme Court has stated that it cannot ignore the fact that a similar G.O. was issued by the erstwhile Andhra Pradesh Govt. in the year 1986, which was quashed by the State Administrative Tribunal against which an appeal was preferred to it, which was dismissed as withdrawn in the year 1998.
 
After withdrawal of appeal from the Court, it was not expected that the same State Govt. will resort to such illegality of providing cent per cent reservation once again. But it persisted and issued GOMs No. 3/2000, which was equally impermissible. There was no rhyme or reason with the State Govt. to resort to 100% reservation. It is unfortunate that the illegal exercise done in 1986 was sought to be protected by yet another unconstitutional attempt by issuing these impugned GOMs with retrospective effect of 1986, and now after that 20 years have passed. In the peculiar circumstances, the Court did not set aside the new appointments conditionally that new States of Andhra Pradesh and Telangana would not attempt a similar exercise in future.
 
If they do so and exceed the limit of reservation, there would not be saving of any appointments made with effect from 1986 till date. The Supreme Court has directed the respondent-States not to exceed the limits of reservation in future and allowed the appeals and saved the appointments made so far conditionally with the aforesaid riders. The cost of appeal quantified at Rs five lakh has been directed to be shared by the two States equally.