As many as 8,423 government primary school teachers from 13 Scheduled Districts of the state are now rendered jobless after the Jharkhand high court on Monday struck down their appointments as null and void, saying 100% domicile reservation for the jobs violates the key principles of Fundamental Rights.
The petitions were filed in 2017 challenging the former Raghubar Das government’s vacancy notice for 17,572 posts of Class III and IV teachers and reserved only for candidates residing in the Scheduled Districts. The notification for domicile reservation had also said candidates from a Scheduled District can only apply in his or district and the domicile reservation of teachers’ jobs in these districts would continue for 10 years till 2026.
A full bench of the court comprising Justice H C Mishra, Justice S Chandrashekhar and Justice Deepak Roshan passed the 63-page verdict during an online hearing of a series of writ petitions filed by rejected candidates.
Heavy reliance was placed on the April 2020 verdict of a five-judge bench of the Supreme Court in Chebrolu L. Prasad’s case, here it was held that 100 per cent domicile reservation of teachers belonging to the Scheduled Tribe category at schools situated in “Scheduled Ares” is constitutionally invalid.
On a plain reading of the impugned notification and order, the High Court bench found that the Governor of Jharkhand has directed that the provisions regarding “eligibility of the appointment” mentioned in the various appointment rules as framed by the State Government under Article 309 of the Constitution of India, for the appointment to district cadre posts shall be deemed to be modified to the extent that cent-percent Class-III and Class-IV posts in various department in the 13 scheduled districts have been reserved for the residents of the concerned districts only. By the notification only the service rules framed under Article 309 of the Constitution of India have been sought to be modified, and even the list attached to the notification does not contain any Act of the Parliament or of the State Legislature.
The bench noted that it is held by the Apex Court in Chebrolu Leela Prasad Rao’s case, that the rules framed under Article 309 of the Constitution of India are neither the law enacted by the Parliament nor by the State Legislature. Further, the top court clearly and specifically held that in garb of the non-obstante clause in paragraph 5(1) of the Fifth Schedule, such power cannot be exercised by the Governor of the State overriding the fundamental rights of the citizens guaranteed under Part-III of the Constitution.
The bench also did not find any merit in the submission of the Advocate General that the decision in Chebrolu Leela Prasad Rao’s case, shall not be applicable to the facts of this case, inasmuch as, the question before the Apex Court was 100% reservation in favour of the Scheduled Tribes in the scheduled areas, which was not the basis of “residence”, as in the State of Jharkhand. The bench domicile reservation case noted that in Kailash Chand Sharma’s case, A.V.S Narsimha Rao’s case and Dr. Pradeep Jain’s case, the Apex Court has held that “residence” by itself cannot be a ground to accord any preferential treatment for reservation, and it is not possible to compartmentalize the State into districts with a view to offer employment to the residents of that district on a preferential basis. In Dr. Pradeep Jain’s case, the Apex Court has even condemned the wholesome reservation made by some of the State Governments on the basis of “domicile reservation” or “residence”. It is also held in these cases that only the Parliament is empowered under Articles 16(3) and 35(a) of the Constitution of India to enact any such law and this power is not available to the State Legislatures, and consequently, this power is not available to the Governor of the State as well.
” We accordingly find, hold and conclude that the Notification No. 5938 and Order No, 5939 dated 14.7.2016, issued by the respondent State, cannot be sustained in the eyes of law and must be held ultra vires Articles 14, 13(2), 15 and 16 of the Constitution of India. The impugned notification and order also violate Articles 16(3) and 35(a-i) of the Constitution of India, as such power is vested only in the Parliament and not in the State Legislatures. Consequently, the Governor of the State also cannot exercise such power. The same is ultra vires paragraph 5(1) of Schedule V of the Constitution of India as well, as the Governor has transgressed the limitations, in the garb of non-obstante clause therein”, ruled the bench.
“The facts of Chebrolu Leela Prasad Rao’s case were quite different. In the said case, the candidates were working for about 30 years, inasmuch as, they were appointed pursuant to the Govt. notification issued on 5.11.1986 itself. Though the Andhra Pradesh Administrative Tribunal quashed the notification and the challenge to that order before the Hon’ble Apex Court was dismissed as withdrawn on 20.3.1998, the Government of Andhra Pradesh came out with yet another illegal notification dated 25.4.1987, which was also finally quashed by the Hon’ble Supreme Court in Civil Appeal No. 6437 of 1998 allowing the appeal by Judgment dated 18.12.1998. Thereafter, the State of Andhra Pradesh came out with yet another illegal notification dated 10.1.2000, which was held ultra vires by the Hon’ble Apex Court in Chebrolu Leela Prasad Rao’s case (supra). Thus, the candidates on domicile reservation already appointed in the year 1987 or afterwards had already worked for more than 30 years and it was in that peculiar circumstance, their appointments were saved with the condition that the States of Andhra Pradesh and Telangana shall not attempt similar exercise in future”, reflected the bench in domicile reservation matter.
It commented that Such is not the case in the present writ applications of domicile reservation in hand. The local residents of the scheduled districts have been appointed only in the month of July, 2019 and they are working since then. Their appointments are fresh appointments and indeed, in teeth of Articles 14 and 16 of the Constitution of India. Such appointments cannot be protected in law. “Indeed, it has been pointed out that the State Government had been contemplating to impose such unreasonable and unconstitutional restrictions for all the districts in the State. We cannot be a mute spectator to such illegal actions of the State Government and any such attempt by the State Government has to be stalled at its very inception. Such appointments, ignoring the rights of more meritorious candidates, only on the basis of residence, were absolutely illegal and unconstitutional from its very inception and have to be quashed”, concluded the bench in domicile reservation case.
During the hearing of this present case of domicile reservation , the government counsel had defended the notification, saying it was issued in exercise of the state’s powers within the Constitution to make laws for the scheduled areas to promote the residents who are economically backward in case of domicile reservation.
