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Case Comment: Chebrolu Leela Prasad Rao v/s State of Andhra Pradesh

Chebrolu Leela Prasad Rao & Ors. V. State Of Andhra Pradesh & Ors - Civil Appeal No. 3609 OF 2002 - Decided on 22nd April, 2020.

Right to Equality is one of the basic fundamental rights that the Constitution of India guarantees to all the citizens of the country. Article 16 deals with the equality of opportunity in matters of public employment. Equal opportunity is a term which has differing definitions and there is no consensus as to the precise meaning.

In this case, the validity of the Government Office Ms. No. 3 dated 10.1.2000 issued by the State of Andhra Pradesh providing 100 percent reservation to the Scheduled Tribe candidates for the post of teachers in the schools in the Scheduled areas in the State of Andhra Pradesh, was challenged before the Supreme Court of India.

Subsequently, other issue like what is the scope of paragraph 5(1), Schedule V to the Constitution of India, whether 100 percent reservation is permissible under the Constitution, etc. were also referred for consideration and answered accordingly.

G.O.Ms. No. 275 dated 5.11.1986, was 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 areas shall be reserved for Scheduled Tribes. The Andhra Pradesh Administrative Tribunal quashed the notification by order dated 25.8.1989. 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 the Supreme Court, which was allowed on 18.12.1998. 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 percent 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 three judge bench of the High Court by majority upheld the validity of G.O. Aggrieved by the same, these appeals were preferred.

  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 percent 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)?
  4. Whether the conditions of eligibility (i.e., origin and cut-off date) to avail the benefit of reservation in the notification are reasonable?

On November 25, 1949, Dr. B.R Ambedkar, chairman of the drafting committee of the Indian Constitution sounded a grave warning in the Constituent Assembly:
On January 26, 1950, we will have equality in politics and inequality in social and economic life. We must remove this contradiction at the earliest moment, or else those who suffer from inequality will blow up the structure of political democracy which this Assembly has so laboriously built up. To guard against such an explosion of discontent, the Preamble of the Constitution clearly spells out the objectives of securing to all its citizens JUSTICE, social, economic and political as well as EQUALITY of status and of opportunity.[2]

The questions regarding reservation in our Constitution has arisen before the Supreme Court multiple times.

In State of Madras v. Smt. Champakan Dorairajan[3], the Communal G.O. passed by the province of Madras for admission of students to the Engineering and Medical College was challenged. A Special Bench of seven judges heard the matter and came to the unanimous conclusion that the allocation of seats in the manner aforesaid is violative of Articles 15(1) and 29(2) inasmuch as the refusal to admit the respondent notwithstanding her higher marks, was based only on the ground of caste. Article 16(4) provides for reservations in favor of backward class of citizens, no such provision was made in Article 15.

Pursuant to Supreme Court's order in the case the Parliament intervened and amended Article 15 by inserting Clause (4), which reads:
Nothing in this article or in clause (2) of article 29 shall prevent the State from making any special provision for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes.[4]

In M.R. Balaji and Ors. v. State of Mysore[5], the State of Mysore issued an order under Article 15(4) of the Constitution declaring all the communities except the Brahmin community as socially and educationally backward and reserving a total of 75 percent seats in Educational Institutions in favor of Socially and Educationally Backward Classes (SEBCs ) and Scheduled Castes/ Scheduled Tribes.

The validity of the impugned order was questioned before the Supreme Court. The five judge Bench while striking down the said order, enunciated that Article 15(4) is a proviso or an exception to Clause (1) of Article 15 and to Clause (2) of Article 29. For the purpose of Article 15(4), backwardness must be both social and educational. The reservation made under Article 15(4) should be reasonable. It should not be such as to defeat or nullify the main rule of equality contained in Clause (1). The further categorization of backward classes into backward and more backward is not warranted by Article 15(4).[6]

The scope of Article 16 (4) was considered by the Supreme Court in T. Devadasan v. Union of India[7]. The Supreme Court struck down the carry forward rule, made by the Government to regulate the appointment of persons of backward classes in government services as unconstitutional on the ground that the power vested in the government cannot be so exercised so as to deny reasonable equality of opportunity in matters of public employment for the members of classes other than backward classes[8]. Clause (4) of Art. 16 is by way of a proviso or an exception to clause (1).

A proviso or an exception cannot be so interpreted as to nullify or destroy the main provision. To hold that unlimited reservation of appointments could be made under clause (4) would in effect efface the guarantee contained in clause (1) or at best make it illusory. No provision of the Constitution or of any enactment can be so construed as to destroy another provision contemporaneously enacted therein.

A seven judge bench of Supreme Court in State of Kerala v. N.M. Thomas[9] adopted the lone dissenting opinion of Justice Koka Subba Rao in Devdasan's case. A governmental order granted provisional promotions to members of Scheduled Castes and Scheduled Tribes who did not have the requisite qualifications to be eligible for such promotion, along with a two years' grace period for them to gain such qualifications was challenged[10].

The Court observed that Article 16(1) as a facet of right to equality under Article 14 permits reasonable classification. For making such classification, two criteria were fixed; first, basis of classification must be backwardness and second, the classification must have nexus to the adequacy of representation.

In Akhil Bharatiya Soshit Karamchari Sangh (Railway) v. Union of India[11] the circulars issued by the Railway Board favoring Scheduled Castes and Scheduled Tribes promotions etc. in railway services was held valid. Carry forward rule to the extent of 64.4 percent was not considered excessive by Justice V.R. Krishnaiyer, and Justice O Chinnapa Reddy found that the limitation of 50 percent laid in Devadasan's case was only for guidance and CFR could be extended for 2 to 3 years.

In K.C. Vasanth Kumar v. State of Karnataka[12], the Supreme Court suggested that the reservations in favor of Scheduled Castes and Scheduled Tribes must be based on the means test. For backward classes, two tests should be conjunctively applied for identifying them for the purpose of reservation in employment and education.

One, that they should be comparable to the Scheduled Castes and Scheduled Tribes in the matter of their backwardness; and two, that they should satisfy the means test such as a State Government may lay down in the context of prevailing economic conditions. It has been further suggested that the policy of reservations should be reviewed every five years or so and if a class has reached up to that level where it does not need the reservation, its name should be deleted from the list of backward classes[13].

The 9 Judge bench of Supreme Court in Indra Sawhney v. Union of India[14](commonly referred as Mandal Case) gave the landmark judgement and enumerated essential points pertaining to reservation in Government employment under Article 16(4) of the Constitution. The court held that Article 16(4) is not an exception of Article 16(1), reservations can be made under Article 16(1). No Reservation can be made under Article 16(4) for classes other than backward classes. But under Article 16(1), reservation can be made for classes, not covered by Article 16(4). Backward classes can be identified based on caste and not only on economic criterion.

Article 16(4) permits classification of backward classes into backward and more backward. Reservation shall not exceed 50 percent. Reservation in promotions were not allowed but this was overruled in M. Nagraj's case by insertion of clause (4A) in Article 16.

The Supreme Court in Union of India v. Virpal Singh[15] case introduced the catch-up rule and held that if the senior general candidate is promoted then he will regain his seniority on promotion post above junior reserved promotees.

It was also held that consequential seniority on promotion post is not covered by Article 16(4A). The consequential seniority on promotion post is not covered by Article 16(4A). Candidates of reserved category selected on their own merit are not to be counted as reserved category students.

The Supreme Court in M. Nagraj v. Union of India[16] upheld the constitutional validity of the Constitution (77th Amendment) Act, 1995, the Constitution (81st Amendment) Act, 2000, the Constitution (82nd Amendment) Act, 2000 and the Constitution (85th Amendment) Act, 2001.

The Supreme Court regarding extent of reservation observed that the the ceiling-limit of 50 percent, the concept of creamy layer and the compelling reasons, namely, backwardness, inadequacy of representation and overall administrative efficiency are all constitutional requirements without which the structure of equality of opportunity in Article 16 would collapse. The Court also emphasized on the point raised in Indira Sawhney judgement of exclusion of the creamy layer in the Scheduled Castes and Scheduled Tribes from availing the benefits of reservation.

In Ashoka Kumar Thakur v. Union of India[17], while deliberating on the constitutional validity of Article 15(5) inserted by the Constitution (Ninety-Third Amendment) Act, the Supreme Court ruled that the concept of creamy layer is inapplicable to Scheduled Castes and Scheduled Tribes. Sub-classification of the members of the Scheduled Castes and Scheduled Tribes was discussed by the Supreme Court in E.V. Chinnaiah v. State of A.P[18], the Court held such a sub classification as invalid. The Court ruled that such a sub-classification was in violation of Article 14 and was beyond the legislative competence of the State Legislature.

Exclusion of the creamy layer in the Scheduled Castes and Scheduled Tribes from availing the benefits of reservation and the necessity for the Government to collect quantifiable data to establish the backwardness of the aforementioned communities, both these points upheld by the Court in Nagaraj case were under challenge in Jarnail Singh v. Lachhmi Narain Gupta[19. The Supreme Court held that there is no need for the Government to collect quantifiable data to establish the backwardness of the Scheduled Castes, Scheduled Tribes communities as required in Nagaraj case.

The principle of creamy layer exclusion applies to Scheduled Castes/ Scheduled Tribes. Previously creamy layer exclusion only applied to Other Backward Classes (OBCs) in matters of reservation. Creamy layer exclusion is a principle of equality. Failing to apply the exclusion of creamy layer principle would violate right to equality in two ways. Firstly, it held that doing so treats equals differently, namely the general classes and the forward among Backward Classes. Second, it held that doing so treat un-equals the same, namely backward classes and the forward among backward classes.

In Mukesh Kumar v. State of Uttarakhand[20] held that reservations are not a fundamental right. No mandamus can be issued by the Court to the State to collect quantifiable data relating to adequacy of representation of the Scheduled Castes and Scheduled Tribes in public services.

  1. 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 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.

    1. 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/ regulation, 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.
    2. 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.
    3. 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.
    4. n exercise of power under Para 5(1) of the Fifth Schedule to the Constitution, 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.
  2. 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.
  3. The notification in question cannot be treated as classification made under Article 16(1). Once the reservation has beenprovided 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.
  4. 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.

Para 5(1) of Schedule V itself states that the Governor may by public notification direct… subject to such exceptions and modifications as he may specify. Para 5(1) nowhere states that the Governor can make a law by himself for a Scheduled Area. Fifth Schedule does not recognize or confer such power, but only power is not to apply the law or to apply it with exceptions or modifications. The object of para 5 of the Schedule V is to establish an egalitarian society and to ensure socio-economic empowerment to the Scheduled Tribes as held in Samatha v. State of A.P. & Ors.[21].

The Governor is not authorized to enact a new Act under the provisions contained in Para 5(1) of Schedule V of the Constitution. The power under para 5(1) is limited to the application of the Governor's decision to apply an act or making modification or creating exceptions. Though, this power can be called legislative to some extent, but that is confined to application, modification or creation of exceptions of the Act of the Parliament or the state. The power of the Governor is pari passu with the legislative power of Parliament and the State. When Para 5 of the V Schedule confers power on the Governor, it is not meant to be conferral of arbitrary power.

The creation of 100 percent reservation had the effect of making a new law under Para 5(1) which is not permissible. And even if the Governor enacts a law with modifications or creating exceptions, or passes an order, he cannot pass that order in contravention of the Presidential order. The governor being appointed by the President of India holds his office during the pleasure of the President. He cannot work in derogation of Presidential orders.

Para 5(1) of V Schedule starts with non- obstante clause. Non- obstante clause is usually used in a provision to indicate that, this provision should prevail despite anything to the contrary in the provision.[22] This means that this clause will prevail over any other Article or Section. But, that does not mean that the particular clause will prevail over the Fundamental Rights guaranteed under Part III of the Constitution.

If allowed, Article 13 of the Constitution becomes redundant in such situation and the power of judicial review of the court would loom into insignificance. Fundamental rights are the rights which are essential for intellectual, moral and spiritual development of individuals. As these rights are fundamental or essential for existence and all-round development of individuals, hence, it's called as Fundamental Rights.

These rights give effect to the objectives of the Constitution stated in the Preamble. Without the operation of Article 13, Part III of the Indian Constitution would become ‘toothless tiger'. Article 13 acts as a safeguard against the arbitrary action of state. The Constitution will lose its importance if there will be no redressal for the breach of Fundamental Rights.

The second important issue that was raised in the case was that whether our Constitution permits 100 percent reservation. Article 16 of the Constitution deals with equality of opportunity in matters of public employment, which ensures equality of opportunity for all the citizens in matters relating to employment or appointment to any office under the State. The Scheduled Castes and Scheduled Tribes have been provided with special measures to make them equal to the others in the Constitution.

Efforts have been made to protect their land and property by enacting various laws. Special provisions have also been carved out to preserve their human dignity with respect, in the shape of trusts in Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989.

The Scheduled Castes and Scheduled Tribes were making a struggle for freedom and various rights in the country. They suffered discrimination; fruits of development have not percolated down to them. They remained an unequal and vulnerable section of the society and treated for centuries as outcasts socially. That is the basis for providing them reservation and special treatment to provide them upliftment and to eradicate their sufferings.

Despite of having special provisions for them, the Scheduled Tribes are still kept in isolation and are not even able to get basic amenities of food, shelter, education. They have suffered historic disabilities arising from discrimination, poverty, educational backwardness. For these reasons, special provisions are engrafted in the Constitution.

In the present case, the Governor under Schedule V, para 5(1) of the Constitution issued a notification reserving 100 percent seats for Schedule Tribes for the posts of teachers in Scheduled areas. This cent percent reservation was held invalid as it was against the 50 percent rule laid down in Indra Sawhney case.

The founding fathers of our Constitution never envisaged reservation of all seats. Reliance was also laid down on the judgements of M. Nagraj, N.M Thomas, M.R Balaji case in which it was held that the ceiling limit of the reservation is 50 percent without which the structure of equality of opportunity in Article 16 would collapse.

The Court also emphasized on Dr. B.R Ambedkar's speech on backward community in the constituent assembly:

A backward community is a community which is backward in the opinion of the Government. My honorable friend Mr. T.T. Krishnamachari asked me whether this rule will be justiciable. It is rather difficult to give a dogmatic answer.

Personally, I think it would be a justiciable matter. If the local Government included in this category of reservations such a large number of seats; I think one could very well go to the Federal Court and the Supreme Court and say that the reservation is of such a magnitude that the rule regarding equality of opportunity has been destroyed and the Court will then come to the conclusion whether the local Government or the State Government has acted in a reasonable and prudent manner.

The concept of reservation is not proportionate, but adequate. By providing 100 percent reservation to to the Scheduled Tribes, the Scheduled Castes, the other backward classes will lose their right of representation which will be against Article 14 of the Constitution. The absenteeism of teachers in the Scheduled areas cannot be filed by reserving 100 percent seats for Scheduled tribes. It is absurd to say that only tribal teachers can teach in Scheduled areas.

Cent percent reservation cannot be justified on the pretext of Right to Equality guaranteed under the Constitution. The concept of equality cannot be pressed to commit another wrong. The concept of equality enshrined in Article 14 of the Constitution is a positive concept. It is not a concept of negative equality. It cannot be used to perpetuate an illegality. Equity cannot be applied when it arises out of illegality. The doctrine of equity would not be attracted when the benefits were conferred on the basis of illegality, as held in Usha Mehta v. Government of Andhra Pradesh[23].

Educational development of students cannot be made only by a particular class of teachers appointed by providing reservation, ignoring merit in toto. The ideal approach would be that teachers are selected based on merit. Depriving the opportunity of employment to other categories cannot be said to be a method of achieving social equilibrium. 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.

The judgement was laid down according to the law laid down in Indra Sawhney case. Senior Advocate Dr. Rajeev Dhawan, counsel for the respondent, in this case has rightly said that there is a need to revise the reservation list of Scheduled Tribes. The Government is duty bound to revise the lists. These lists must be revised after a uniform period of time so that the 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 their inclusion in the list.

By reserving seats for Scheduled Tribes as per the Constitutional mandates will not alone uplift them, but by adopting measures such as giving incentives through a specific Government scheme and informing them about their rights and freedoms which are guaranteed to them under the Constitution will uplift them in a much effective way. Its high time to fulfill the dream of our founding fathers of the Constitution of achieving social and economic equality by uplifting the Scheduled Tribes, Scheduled Castes and Other Backward Classes of the country socially, economically and educationally.

  1. X
  3. [1951] S.C.R. 525.
  5. [1963] Suppl. 1 S.C.R. 439.
  7. AIR 1964 SC 179.
  8. Supra note 6.
  9. AIR 1976 SC 490.
  11. AIR 1981 SC 298.
  12. AIR 1985 SC 1495.
  13. Supra note 6.
  14. AIR 1993 SC 477.
  15. (1995) 6 SCC 684.
  16. (2006) 8 SCC 212.
  17. (2008) 6 SCC 1.
  18. (2005) 1 SCC 394.
  19. (2018) 10 SCC 396.
  20. Civil Appeal No. 1226 of 2020.
  21. (1997) 8 SCC 191.
  23. (2012) 12 SCC 419.
Written By: Shreyansh Chopra - BA. LLB, 2nd Year (VIPS, GGSIPU), 2018- 2023.  

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