Is hundred percent reservation in Government service permissible in law?

Validity of 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.

(1) What is the scope of paragraph 5(1), Schedule V to the Constitution of India?

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 tothe 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 specify148in the notification and can also issue a notification with retrospective effect.

2(a) Does the provision empower the Governor to make a new law?

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.

(b) Does the power extend to subordinate legislation?

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.

(c) Can the exercise of the power conferred therein override fundamental rights guaranteed under Part III?

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 rights149guaranteed under Part III of the Constitution

(d) Does the exercise of such power override any parallel exercise of power by the President under Article 371D?

In 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.

(2) Whether 100% reservation is permissible under the Constitution?

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) Whether the notification merely contemplates a classification under Article 16(1) and not reservation under Article 16(4)?

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 Articles14 and 16(4) of the Constitution of India.

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

The conditions of eligibility in the notification with a cut­off date, i.e., 26.1.1950, to avail the benefits of reservation, is unreasonable and arbitrary one.

Reckless conduct of Government

We cannot ignore the fact that a similar G.O. was issued by the erstwhile State Government of Andhra Pradesh in the year 1986,which was quashed by the State Administrative Tribunal, against which an appeal was preferred in this Court, which was dismissed as withdrawn in the year 1998. After withdrawal of the appeal from this Court, it was expected of the erstwhile State of Andhra Pradesh not to resort to such illegality of providing 100% reservation once again. But instead, it issued G.O. Ms. No.3 of 2000, which was equally impermissible, even if the A.P. Regulation of Reservation and Appointment to Public Services Act, 1997 would have been amended,in that event also providing reservation beyond 50% was not permissible. It is rightly apprehended by appellants that the State may again by way of mis­adventure, resort to similar illegal exercise as was done earlier. It was least expected from the functionary like Government to act in aforesaid manner as they were bound by the dictum laid down by this Court in Indra Sawhney (supra) and other decisions holding that the limit of reservation not to exceed 50%. There was no rhyme or reason with the State Government to resort to151100% reservation. It is unfortunate that illegal exercise done in 1986was sought to be protected by yet another unconstitutional attempt by issuing G.O.Ms. No.3 of 2000 with retrospective effect of 1986, and now after that 20 years have passed. In the peculiar circumstance, we save the appointments conditionally that the reorganised States i.e.the States of Andhra Pradesh and Telangana not to attempt a similar exercise in the future. If they do so and exceed the limit of reservation, there shall not be any saving of the appointments made,w.e.f. 1986 till date. We direct the respondents ­States not to exceed the limits of reservation in future. Ordered accordingly.

[Source: CHEBROLU LEELA PRASAD RAO vs. State of A.P. decided by SC on April 22, 2020]

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