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CHEBROLU LEELA PRASAD RAO v. STATE OF ANDHRA PRADESH

Case Comment

1.FACTS :

  • 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, non­tribals 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.

2.ISSUES RAISED :                     

  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?

  • Whether 100 percent reservation is permissible under the Constitution?

3.CONTENTION :

  • 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.
  • Pursuant to Supreme Court’s order in the case the Parliament intervened and amended Article 15 by inserting Clause (4), which reads:
  • 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.

4.RATIONALE :                      

  • 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 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.
  • 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.
  • 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.

5.DEFECTS OF LAW :                                        

  • 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.
  • 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.

6.INFERENCE :

  • 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.
  • 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.

CITATION

[i]

Name : L.Swetha

College : Sathyabama Institute of Science And Technology

[i][i][i][i] https://indconlawphil.wordpress.com/2014/02/01/reservations-equality-and-the-constitution-iii-state-of-kerala-v-n-m-thomas-and-the-transformation-of-equality/

https://www.clcbd.org/lawdictionary/749.html

http://www.legalserviceindia.com/article/l95-The-State-of-Madras-vs.-Smt.-Champakam-Dorairajan.html

https://www.vakilno1.com/legal-news/important-judgments-on-reservation-in-india.html